NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MARCO SALOMON-MACIAS, 

Defendant-Appellant.

No. 16-10471 

D.C. No. 

2:15-cr-01557-DLR-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Submitted December 7, 2017**

San Francisco, California

Before: LUCERO,*** RAWLINSON, and OWENS, Circuit Judges.

Marco Salomon-Macias appeals from his jury conviction for attempted 

reentry of a removed alien in violation of 8 U.S.C. § 1326. As the parties are

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Carlos F. Lucero, United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

DEC 13 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

familiar with the facts, we do not recount them here. We affirm.

Salomon-Macias argues that there was insufficient evidence that he had the 

specific intent to enter the country “free from official restraint” because he jumped 

a border fence with the intent to be taken into custody. United States v. LomberaValdovinos, 429 F.3d 927, 928 (9th Cir. 2005) (holding that it is not “possible to 

convict a previously deported alien for attempted illegal reentry . . . when he 

crosses the border with the intent only to be imprisoned” because “attempted 

illegal reentry is a specific intent crime that requires proof of intent to enter the 

country free from official restraint”). However, viewing the evidence in the light 

most favorable to the government, a rational jury could have found that SalomonMacias did not cross the border with the sole intent to be taken into custody. The 

instant case differs from Lombera-Valdovinos, which “present[ed] a rare set of 

factual circumstances where there is no evidence of anything other than the intent 

to be taken into custody.” Id. at 930 n.3. Salomon-Macias’ reliance on United 

States v. Argueta-Rosales, 819 F.3d 1149, 1156-57 (9th Cir. 2016), is also 

misplaced. In Argueta-Rosales, we reviewed whether the district court’s legal 

error was harmless, rather than for sufficiency of the evidence, and noted that 

where “there is contradictory evidence regarding the defendant’s intent, it is for the 

trier of fact to determine whether the government has proven unlawful intent 

beyond a reasonable doubt.” Id. at 1157.
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Similarly, contrary to Salomon-Macias’ contention, viewing the evidence in 

the light most favorable to the government, a rational jury could have found that 

Salomon-Macias did not have a reasonable mistaken belief that he was a U.S. 

citizen. Cf. United States v. Smith-Baltiher, 424 F.3d 913, 923-25 (9th Cir. 2005) 

(holding that a defendant’s reasonable mistaken belief that he is a U.S. citizen, and 

therefore does not need the Attorney General’s permission before attempting 

reentry, is a defense to the specific intent crime of attempted illegal reentry). 

Further, to the extent Salomon-Macias raises the district court’s failure to 

instruct the jury regarding a reasonable mistaken belief of citizenship defense, 

reversal is not warranted on this basis. The district court did not abuse its 

discretion in determining that there was an inadequate factual basis for the 

instruction, and Salomon-Macias’ trial counsel conceded that an instruction was 

unnecessary because he was not raising such a defense. See United States v. 

Daane, 475 F.3d 1114, 1119 (9th Cir. 2007) (stating that this court reviews for an 

abuse of discretion the denial of a defendant’s jury instruction due to an inadequate 

factual basis).

The district court properly denied Salomon-Macias’ motion to suppress his 

statements because the court did not clearly err in finding that the over ten-hour 

period between Salomon-Macias’ arrest and interview was reasonable as the delay 

was caused by his need for medical treatment at a hospital. See United States v. 
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Matus-Leva, 311 F.3d 1214, 1217 (9th Cir. 2002) (holding that the district court 

properly denied a motion to suppress because the pre-arraignment delay was 

reasonable under the circumstances, which included providing the defendant with 

medical treatment). 

Finally, Salomon-Macias argues that he was prejudiced and did not receive a 

fair trial because in rebuttal closing argument the prosecutor misstated the law. 

However, any error was harmless. See United States v. McWilliams, 730 F.2d 

1218, 1222 n.3 (9th Cir. 1984) (per curiam) (holding that harmless, rather than 

plain, error standard of review applies where counsel fails to object but the “trial 

judge recognizes error and acts on his or her own initiative to correct the error”). 

Any risk of prejudice was mitigated by the district court’s sua sponte curative 

instruction, which immediately followed and was focused upon the allegedly 

improper remarks. See United States v. Barragan, 871 F.3d 689, 709 (9th Cir. 

2017) (“A curative instruction can neutralize the harm of a prosecutor’s improper 

statements if it is given immediately after the damage [is] done and mentions the 

specific statements.” (citation and internal quotation marks omitted)). Moreover, 

before closing argument, the district court properly instructed the jury, and the 

prosecutor correctly stated the law in her initial closing argument. See United 

States v. Begay, 673 F.3d 1038, 1046-47 (9th Cir. 2011) (en banc).

AFFIRMED.