NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOAQUIN ANTONIO DAVALOS-LOPEZ, 

Defendant-Appellant.

No. 18-50068 

D.C. No. 

3:17-cr-02268-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted July 12, 2019 

Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,** District 

Judge.

Joaquin Antonio Davalos-Lopez was convicted in a jury trial of attempted 

illegal reentry following deportation, in violation of 8 U.S.C. § 1326 (Count 1), 

and attempted illegal entry by an alien, in violation of 8 U.S.C. § 1325 (Count 2). 

 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Michael H. Simon, United States District Judge for the 

District of Oregon, sitting by designation.

FILED

JUL 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The district court sentenced him to 37 months in prison and three years of 

supervised release for both counts, to run concurrently. Davalos appeals his 

conviction for Count 1 and his sentence for both counts. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. We affirm Davalos’s conviction and sentence for 

Count 1, but vacate his sentence for Count 2. 

1. Davalos argues that the indictment was fatally flawed as to Count 1 because 

it did not allege that Davalos had the specific intent to enter the United States free 

from official restraint. Because the indictment “set forth the offense in the words 

of the statute itself,” however, “[i]t is generally sufficient . . . as long as ‘those 

words . . . fully, directly, and expressly, without any uncertainty or ambiguity, set 

forth all the elements necessary to constitute the offence intended to be punished.’” 

Hamling v. United States, 418 U.S. 87, 117 (1974) (quoting United States v. Carll, 

105 U.S. 611, 612 (1881)). The indictment here did just that. Unlike the 

indictment in United States v. Pernillo-Fuentes, 252 F.3d 1030, 1031–32 (9th Cir. 

2001), which Davalos relies on, the present indictment required the grand jury to 

find that Davalos crossed the border “with the purpose, i.e., conscious desire, to 

enter” the country without permission. That the indictment did not define the 

distinct legal meaning of “entry” does not render it deficient, for indictments need 

not contain the level of specificity that may be required in jury instructions. 

Compare United States v. Vazquez-Hernandez, 849 F.3d 1219, 1225 n.3 (9th Cir. 
3 

2017) (requirements for jury instructions) with United States v. Resendiz-Ponce, 

549 U.S. 102, 108 (2007) (requirements for indictments). 

2. We also reject Davalos’s argument that the district court erred at sentencing

by denying him a downward adjustment for acceptance of responsibility under 

U.S.S.G. § 3E1.1(a). The court emphasized several times that it “fully 

under[stood] that one who goes to trial is eligible for . . . acceptance of 

responsibility.” But after considering the circumstances—including Davalos’s 

“impassioned entreaty to the jury to let [him] go,” his lack of apology to the court,

and the fact that Davalos had nine prior convictions for immigration offenses—the 

court determined that Davalos had not clearly demonstrated sincere contrition. 

Because that decision was not “without foundation,” the district court did not abuse 

its discretion in determining that Davalos did not meet the requirements for the 

downward adjustment. United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993). 

3. We vacate Davalos’s sentence as to Count 2. The district court erred by 

sentencing Davalos to 37 months in prison and three years of supervised release 

because the statutory maximum sentence for that count is two years in prison and 

one year of supervised release. 8 U.S.C. § 1325(a); 18 U.S.C. §§ 3559(a)(5), 

3583(b)(3). 

AFFIRMED IN PART, VACATED IN PART, and REMANDED.