FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PEDRO HERNANDEZQUINTANIA,

Defendant-Appellant.

No. 16-50171

D.C. Nos.

3:14-cr-01225-LAB-1

3:16-cr-00132-LAB-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted August 29, 2017

Pasadena, California

Filed November 3, 2017

Before: William A. Fletcher and Sandra S. Ikuta, Circuit 

Judges, and Nancy Freudenthal,

* Chief District Judge.

Opinion by Judge Freudenthal

 * The Honorable Nancy Freudenthal, Chief United States District 

Judge for the District of Wyoming, sitting by designation.
2 UNITED STATES V. HERNANDEZ-QUINTANIA

SUMMARY**

Criminal Law

The panel affirmed (1) a conviction under 18 U.S.C. 

§ 1326 for reentry by a previously-deported alien without the 

express consent of the Attorney General to reapply for 

admission, and (2) the resulting revocation of the 

defendant’s supervised release from a prior illegal reentry 

conviction. 

The panel rejected the defendant’s contention that the 

government failed to prove he did not obtain the Attorney 

General’s consent to reapply for admission to entering the 

United States. The panel held that § 1326 requires a 

deported alien to receive the Attorney General’s consent to 

reapply for admission after his or her most recent 

deportation, regardless of whether he or she had prior 

permission to reapply, and that the evidence was sufficient 

for the jury to find that the defendant was in the United States 

without such consent.

The panel held that the district court properly denied the 

defendant’s Batson challenge asserting that the government 

struck two jurors based on their ethnicity. The panel held 

that the totality of the circumstances does not raise an 

inference that the government’s challenges were racially 

motivated, that the defendant failed to make a prima facie 

case of discrimination, and that the district court’s comments 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ-QUINTANIA 3

regarding the possible reasons for striking the jurors did not 

constitute structural error.

COUNSEL

Doug Keller (argued), Federal Defenders of San Diego Inc.,

San Diego, California, for Defendant-Appellant.

Colin M. McDonald (argued), Assistant United States 

Attorney; Helen H. Hong, Chief, Appellate Section, 

Criminal Division; Alana W. Robinson, Acting United 

States Attorney; United States Attorney’s Office, San Diego, 

California; for Plaintiff-Appellee.

OPINION

FREUDENTHAL, Chief District Judge:

Hernandez-Quintania appeals from a jury conviction 

under 8 U.S.C. § 1326, which makes it a felony for an alien 

who has previously been deported to reenter the United 

States without the express consent of the Attorney General 

to reapply for admission. As a result of the conviction, the 

district court also found Hernandez-Quintania violated the 

terms of his supervised release from a prior 2014 illegal 

reentry conviction.

We find there was substantial evidence to support 

Hernandez-Quintania’s conviction and that the district court 

properly denied Hernandez-Quintania’s Batson challenge. 

We therefore affirm Hernandez-Quintania’s conviction and 

supervised release revocation.
4 UNITED STATES V. HERNANDEZ-QUINTANIA

FACTS AND PROCEEDINGS BELOW

Hernandez-Quintania is a Mexican citizen. In 2014, he 

pleaded guilty to being a removed alien found in the United 

States in violation of 8 U.S.C. § 1326. For that conviction 

he received a ten-month prison sentence and three years of 

supervised release. The conditions of his supervised release 

required he not “commit another federal, state or local 

crime.” After Hernandez-Quintania finished serving his 

prison sentence, he was removed to Mexico in April of 2015.

On January 9, 2016, Border Patrol Agent Amadeo 

Castillo picked up Hernandez-Quintania in Dulzura, 

California. Agent Castillo found Hernandez-Quintania lying 

down on his stomach at the corner of an intersection. 

Hernandez-Quintania told Agent Castillo he was a Mexican 

citizen. Hernandez-Quintania did not have any documents 

allowing him to legally enter or remain in the United States.

The government charged Hernandez-Quintania with 

illegal reentry of a removed alien in violation of 8 U.S.C. 

§ 1326. Hernandez-Quintania pleaded not guilty and 

proceeded to a jury trial on April 5, 2016. During trial, the 

government introduced evidence that Hernandez-Quintania 

was deported on July 23, 2013 and again on April 15, 2015. 

The government also introduced evidence that HernandezQuintania had not received permission for admission since 

his last deportation in 2015. The jury returned a guilty 

verdict. As a result of his conviction, the district court also 

revoked Hernandez-Quintania’s supervised release because 

he committed another federal crime while on supervision.

Hernandez-Quintania timely appealed, challenging the 

sufficiency of the evidence that he reentered the United 

States without permission. Hernandez-Quintania also 

claims the district court erred in determining he failed to 
UNITED STATES V. HERNANDEZ-QUINTANIA 5

establish a prima facie case of purposeful discrimination in 

his Batson challenge. The only challenge to the revocation 

of supervised release is related to the viability of HernandezQuintania’s conviction under § 1326.

DISCUSSION

This case consolidates two appeals: HernandezQuintania’s appeal of the revocation of his supervised 

release and his criminal conviction under 8 U.S.C. § 1326. 

Hernandez-Quintania challenges the sufficiency of the 

evidence related to his conviction. Specifically, HernandezQuintania questions whether the Government proved he did 

not obtain consent to reapply for admission. Additionally, 

Hernandez-Quintania claims the district court improperly 

denied his Batson challenge.

I. Sufficiency of the Evidence

Hernandez-Quintania argues the district court erred in 

finding the government produced sufficient evidence that he 

was guilty of illegally reentering the country after being 

deported under 8 U.S.C. § 1326(a). Sufficiency of the 

evidence is satisfied if “after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime 

beyond a reasonable doubt.” United States v. Tisor, 96 F.3d 

370, 379 (9th Cir. 1996) (italics omitted) (quoting Jackson 

v. Virginia, 443 U.S. 307, 319 (1979)). Conflicting evidence 

is to be resolved in favor of the verdict and “all reasonable 

inferences are to be drawn in favor of the government [.]” 

United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1201–

02 (9th Cir. 2000).
6 UNITED STATES V. HERNANDEZ-QUINTANIA

The relevant portion of 8 U.S.C. § 1326 provides:

Subject to subsection (b), any alien who—

(1) has been denied admission, excluded, 

deported, or removed or has departed 

the United States while an order of 

exclusion, deportation, or removal is 

outstanding, and thereafter

(2) enters, attempts to enter, or is at any 

time found in, the United States, 

unless (A) prior to his reembarkation 

at a place outside the United States or 

his application for admission from 

foreign contiguous territory, the 

Attorney General has expressly 

consented to such alien’s reapplying 

for admission; . . . . shall be fined 

under Title 18, or imprisoned . . . , or 

both.1

Hernandez-Quintania’s only claim of error is that the 

government failed to prove he did not obtain the Attorney 

General’s consent to reapply for admission prior to entering 

the United States.

During the trial, Border Patrol Agent Joel Gonzalez 

made reference to an application for admission in 2004. 

However, there was no testimony regarding the resolution of 

 1 In 2002, Congress transferred the authority to grant such consent 

from the Attorney General to the Secretary of Homeland Security. See 

Homeland Security Act of 2002, Pub.L. No. 107–296, §§ 402, 1517, 

116 Stat. 2135, 2177–78, 2311 (2002) (codified at 6 U.S.C. §§ 202, 557).
UNITED STATES V. HERNANDEZ-QUINTANIA 7

that application. Hernandez-Quintania argues that the 

Attorney General took some action on the 2004 application 

and it could have been granted. The crux of HernandezQuintania’s argument is that if he received consent to 

reapply for admission from the Attorney General at any time 

prior to January 9, 2016, he was immune from § 1326 

prosecution, regardless of the number of subsequent 

deportations after 2004. Therefore, Hernandez-Quintania 

claims the government was required to prove he never 

received consent to reapply for admission, which the 

government failed to prove in this case, because there was 

no evidence regarding the disposition of the 2004 

application.

This issue requires statutory construction of § 1326(a). 

“[W]here Congress has made its intent clear, ‘we must give 

effect to that intent.’” Miller v. French, 530 U.S. 327, 336 

(2000) (citing Sinclair Refining Co. v. Atkinson, 370 U.S. 

195, 215 (1962)). In examining the language of the statute, 

we conclude the Attorney General’s consent to reapply must 

come after the most recent deportation.

The plain language of the statute provides that “any alien 

who – (1) has been denied admission, excluded, deported, or 

removed . . . , and thereafter (2) enters, attempts to enter, or 

is at any time found in, the United States, unless (A) prior to 

his reembarkation at a place outside the United States . . . the 

Attorney General has expressly consented to such alien’s 

reapplying for admission . . . .” 8 U.S.C. § 1326(a) 

(emphasis added). This section’s plain language requires a 

deported alien to receive the Attorney General’s consent to 

reapply for admission after his or her previous deportation, 

regardless of whether he or she had prior permission to 

reapply. See United States v. Cabral, 252 F.3d 520, 522–23 

(1st Cir. 2001) (finding as an element of 8 U.S.C. § 1326 
8 UNITED STATES V. HERNANDEZ-QUINTANIA

“that he had not received the express consent of the Attorney 

General of the United States to apply for readmission to the 

United States since the time of his previous arrest and 

deportation.”); United States v. Angeles-Mascote, 206 F.3d 

529, 531 (5th Cir. 2000) (same).

As further support for this position, at trial the 

government produced the “notice to alien ordered 

removed/departure verification” (DHS Form I-296) 

Hernandez-Quintania received after his removal in 2013. 

The notice stated:

After your removal has been effected, 

you must request and obtain permission from 

the Secretary of Homeland Security to 

reapply for admission to the United States 

during the period indicated. You must obtain 

such permission before commencing your 

travel to the United States.

The government also produced evidence that 

Hernandez-Quintania was deported as recently as 2015. 

Additionally, the government provided testimony from 

Hernandez-Quintania’s A-file custodian that two separate 

immigration databases revealed no evidence that 

Hernandez-Quintania requested permission to reenter the 

United States after his last deportation. This evidence, when 

considered in the light most favorable to the government, is 

sufficient for the jury to find that Hernandez-Quintania was 

in the United States without the consent of the Attorney 

General or the Secretary of the Department of Homeland

Security.
UNITED STATES V. HERNANDEZ-QUINTANIA 9

II. Batson Challenge

Hernandez-Quintania challenges the district court’s 

finding that he did not make a prima facie showing for his 

Batson challenge. At trial, Hernandez-Quintania raised a 

Batson challenge asserting the government impermissibly 

struck two jurors based on their ethnicity.

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the 

Supreme Court found “the Equal Protection Clause forbids 

the prosecutor to challenge potential jurors solely on account 

of their race . . . .” Since Batson, the Supreme Court has 

explained that trial courts should employ a three-step process 

in adjudicating Batson claims:

First, a defendant must make a prima facie 

showing that a peremptory challenge has 

been exercised on the basis of race; second, if 

that showing has been made, the prosecution 

must offer a race-neutral basis for striking the 

juror in question; and third, in light of the 

parties' submissions, the trial court must 

determine whether the defendant has shown 

purposeful discrimination.

Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (citing 

Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).

To establish a prima facie case at step one, a defendant 

must show “the totality of the relevant facts gives rise to an 

inference of discriminatory purpose.” Batson, 476 U.S. at 

93–94. “If the defendant fails to present sufficient evidence 

to establish a prima facie case, the challenge may be denied 

and the court need not continue to step two.” United States 

v. Guerrero, 595 F.3d 1059, 1062 (9th Cir. 2010).
10 UNITED STATES V. HERNANDEZ-QUINTANIA

To establish a prima facie case, the defendant 

must establish that (1) the prospective juror 

who was removed is a member of a 

cognizable group, (2) the prosecution 

exercised a peremptory challenge to remove 

the juror, and (3) “the facts and any other 

relevant circumstances raise an inference” 

that the challenge was motivated by race or 

gender.

Cooperwood v. Cambra, 245 F.3d 1042, 1045–46 (9th Cir. 

2001) (citing Batson, 476 U.S. at 96).

Hernandez-Quintania argues the district court committed 

a structural error when it impermissibly speculated as to the 

race-neutral reasons the prosecutor might have had for 

striking the juror. Hernandez-Quintania also argues the 

district court misapplied the standard at step one.

The district court started jury selection by providing each 

juror a questionnaire asking for the juror’s name, marital 

status, if they have any children over the age of eighteen, 

whether they have friends or relatives in law enforcement, if 

they have prior jury service, and if they can be fair and 

impartial. During voir dire, each juror provided their 

answers to those questions.

In total, the district court questioned thirty-four jurors 

and dismissed one for cause. The parties then exercised their 

peremptory challenges. The government struck two jurors, 

both minorities, one with a Hispanic last name, the other 

with the last name Gabuya.2 Following jury selection, 

counsel for Hernandez-Quintania approached the bench and 

 2 The record does not disclose additional strikes by the government.
UNITED STATES V. HERNANDEZ-QUINTANIA 11

raised a Batson challenge. The following exchange then 

took place.

The Court: Okay. Looking – tell me what the 

basis of the challenge is.

[Defense Counsel]: Both of those jurors are 

minorities, so we would ask for the

government to offer their reason, a 

nonprejudicial reason, for striking.

The Court: It appears to me that there are a 

number of other minority jurors that are 

going to be part of the jury. I don’t see 

anything unusual about it, nothing that strikes 

me as out of the ordinary. The fact that a juror 

happens to be a minority is not, of itself, 

prima facie proof. Is there anything else that 

you have to support the challenge?

[Defense Counsel]: No, Your Honor. We 

would ask the government be required to 

state a reason.

The Court: I am not going to because I don’t 

even find a prima facie case here. The 

composition of the jury is very mixed in this 

case. I could make my own personal 

observations. One guy, Number 3, has a 

weird hairdo, from my perspective. I don’t 

know what it is. But there are all kinds of 

neutral explanations that would explain his 

challenge. So I don’t see it. No prima facie 

case has been made. The Batson challenge is 

denied.
12 UNITED STATES V. HERNANDEZ-QUINTANIA

After the jury was sworn in and at the next break, the 

district court elaborated on its ruling. The district court 

noted that Hernandez-Quintania’s sole basis for the 

challenge was that “both jurors were apparent minorities.” 

The district court observed that half the empaneled jury 

“appear[ed] to be minorities so the fact that these two 

particular jurors were of an apparent minority did not make 

a prima facie case of wrongful exclusion.” The district court 

also noted that Hernandez-Quintania excluded a number of 

apparent minorities, so under that standard, “then they are 

guilty of the same Batson violation.” Specifically, the 

district court noted that Hernandez-Quintania excluded two 

jurors with Spanish surnames, a South African immigrant 

who became a United States citizen, and another juror who 

was an apparent minority. Id. The district court reiterated 

that “[w]e don’t get to step two in the Batson process, where 

the Court requires a neutral explanation, unless I find a prima 

facie case has been made, and I find no prima facie case was 

made in this case.”

Hernandez-Quintania failed to support the Batson

challenge with any argument, other than the government 

struck two jurors who appeared to be minorities. This fact 

standing alone is not sufficient. See, e.g., Williams v. 

Woodford, 384 F.3d 567, 584 (9th Cir. 2002) (“Using 

peremptory challenges to strike Blacks does not end the 

prima facie inquiry; it is not per se unconstitutional, without 

more, to strike one or more Blacks from the jury . . . . A 

district court must consider the relevant circumstances 

surrounding a peremptory challenge”) (citations omitted); 

United States v. Wills, 88 F.3d 704, 715 (9th Cir. 1996) 

(claim that striking two African American jurors was not 

enough for a prima facie case, particularly when several 

African American jurors were empaneled).
UNITED STATES V. HERNANDEZ-QUINTANIA 13

Hernandez-Quintania did not argue that the two jurors 

who appeared to be minorities were questioned differently, 

that the government exercised a pattern of striking apparent 

minority panel members, that the government struck a large 

number of panel membersfrom the same racial group, or that 

the jury composition was disproportionate because of the 

strikes. In fact, the record demonstrates that the jury 

contained six apparent minority jurors and that HernandezQuintania struck more minority jurors than the government. 

The totality of the circumstances does not raise an inference 

that the government’s challenges were racially motivated.

Hernandez-Quintania also argues the district court 

erroneously “raised” the prima facie bar by stating, “I have 

to be convinced that it’s at least – I won’t say likely, but 

plausible that he was removed solely because of his minority 

status. And here, I couldn’t reach that conclusion at all[.]” 

This passing remark does not alter the record, which 

supports the district court’s finding that HernandezQuintania failed to offer any support or argument that the 

government’s challenges were racially motivated.

Hernandez-Quintania failed to make a prima facie case 

of discrimination. Because he did not meet step one of 

Batson, there was no need for the district court to continue 

to steps two and three. The district court’s comments 

regarding the government’s possible reasons for striking the 

jurors did not constitute structural error. The district court 

properly denied the Batson challenge.

III. Revocation of Supervised Release

Hernandez-Quintania also appeals his related supervised 

release revocation. As a result of his § 1326 conviction, the 

district court found Hernandez-Quintania violated the terms 

of his supervised release. Hernandez-Quintania’s only 
14 UNITED STATES V. HERNANDEZ-QUINTANIA

challenge to his revocation is the alleged invalidity of his 

§ 1326 conviction. Having affirmed Hernandez-Quintania’s 

§ 1326 conviction, we also affirm his supervised release 

revocation.

CONCLUSION

For the foregoing reasons, we AFFIRM HernandezQuintania’s conviction and supervised release revocation.