### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11–40142

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JUAN FRANCISCO JARA-FAVELA, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges. EMILIO M. GARZA, Circuit Judge: The Defendant-Appellant Juan Fra n c i sco Jara-Favela (“Jara-Favela”) appeals his convictions for attempted illegal reentry and for making a false statement to Customs and Border Patrol (“CBP”) agents. We AFFIRM. I This appeal arises o u t of Jara-Favela’s attempt to illegally reenter the United States at the United States–Mexico border. A jury c o nvic ted him of attempted illegal reentry and for making a false statement to CBP agents. The facts that follow summarize the testimony presented at trial. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June27 , 20 12 Lyle W . Cayce Clerk Case: 11-40142 Document: 00511902212 Page: 1 Date Filed: 06/27/2012No. 11–40142

Jara-Favela, a Mexican citizen, was previously granted legal status to be in the United State s , b u t was deported to Mexico after an immigration judge ordered him removed. He did not apply for readmission. Just over a month after his removal, Jara-Favela approached the bridge at th e Gateway to the Americas Port of Entry, located on the United States-Mexico border between Laredo, Texas, and Nuevo Laredo, which is in Mexico. The bridge spans the Rio Grande and is divided into several lanes dedicated to pedestrian or automotive traffic. Important to this case is an area known as soft secondary inspection, an

area reserved for people with questions and minor problems. Pedestrians such

as Jara-Favela may approach soft secondary inspection in a few ways. First, if

a problem arises at primary inspec ti on, pedestrians, whether approaching the bridge from either direction, may be referred or e s c o rted to soft secondary inspection for assistance. If referred or escorted from either side of the border, the person sometimes may receive an ora n g e s li p explaining the issue to be resolved. Only if able to resolve the issue, the soft secondary agent will stamp the orange slip, signaling to the agent at primary inspection that the person may

c r o ss the border. Pedestrians arriving from Mexico may approach s o f t 1 secondary i n o n e o ther way. They may walk there directly to ask questions, without first passing through primary inspection. Regardless of how they reach soft secondary—a r e f e rral, escort, or simply walking up to the counter—all pedestrians crossing the bridge, whether going north or south, ultimately must pass through one of three booths for primary inspection before they may legally cross the border.

Tes tim ony at tri al sugges ted that oran ge sli ps are mo re com mo nly iss ued to peo ple 1
a tte mp ting to ente r the Unit ed Sta tes , but wa s uncle ar. The tra nsc rip t ref lect s the d i s t ri c t court’s c onf

usi on aboutthisp roc es s. 2 Case: 11-40142 Document: 00511902212 Page: 2 Date Filed: 06/27/2012No. 11–40142

At th e p ort of entry, Jara-Favela approached soft secondary inspectio n an d spoke to Crystal Escobedo (“Escobedo”), a CBP officer. Jara-Favela did not have an orange slip, and it was unclear whether he reached soft secondary from the Mexican or American side of the bo r d e r . Jara-Favela showed Escobedo his Mexican passport and his expired, but otherwise valid, ADIT stamp that he had previously used to enter the United States. Jara-Favela did not claim that his 2 ADIT stamp was valid, but asked Escob e d o about the status of his legal permanent resident card, claiming he had never received it. Escobedo checked Jara-Favela’s residency status in a database and learned that Citizenship and Immigration Services (“CIS”) had not issued Jara-Favela a card since 2005. Escobedo asked Jara-Favela where he was coming from. He said, “el norte”—the north. Assuming that Jara-Favela meant the United States, Escobedo advised J ara-Favela to visit the CIS office in Laredo for help. Before leaving soft secondary inspec tion, Jara-Favela asked Escobedo for a stamped orange slip. Assuming that he was referred to soft secondary inspection f r o m primary inspection o n th e United States side of the border and had not received an orange slip, Escobedo advised Jar a - F avela to return to the primary inspection officer who let him pass through to secondary. Jara-Favela went to a pedestrian lane at primary inspection, where CBP officer Zach DeLeza (“DeLeza”) was on duty. DeLeza di d not know that JaraFavela had just spoken to Escobedo. Jara-Favela showed DeLeza his passport with the expired ADIT stamp. Speaking in Spanish, DeLeza asked him where he was coming from. Jara-Favela t o l d h i m h e was coming from the north and explained that he wanted to check the status of his legal permanent resident

An ADIT st amp is iss ued by Citize nshi p and Imm igrat ion Services in Lared o, Texas

. 2 It is a tem por ary st amp that allow s legal per man ent resid ents of the UnitedStat esto travel to Me xico and return to the Unit ed Sta tes wh ile the governm ent is proce ss ing thei r new legal per man ent res ide nt car ds

. 3 Case: 11-40142 Document: 00511902212 Page: 3 Date Filed: 06/27/2012No. 11–40142

card. DeLeza searched a database at secondary inspection and saw a “lookout” beside Jara-Favela’s name. DeLeza asked Jara-Favela at least one more time where he was coming from, and Jara-Favela again said the north. DeLeza filled out an orange slip, writing Jara-Favela “claims [he is] coming from the north and he came about to check on his [Legal Perm a n e nt Resident] card.” DeLeza

e s c o rt ed Jara-Favela to secondary inspection with help from his superviso r Agent Isidro Avila (“Avila”). After DeLeza explained to Avil a wh at Jara-Favela had told him, Avila

a s k ed Jara-Favela where he was coming from. This time, Jara-Favel a s ai d Mexico. Because of the perceived inconsistencies in his statements, the agents patted Jara-Favela down and handcuffed him to a chair in an area reserved for hard secondary inspection—dedicate d t o interrogation, expediting removal, or exploring the possibility of criminal prosecution—to await questioning. While he wait e d , video footage from the bridge confirmed that Jara-Favela had approached the point of entry from Mexico, and CBP Agent H e ctor Guerra 3 (“Guerra”) reviewed Jara-Favela’s case file, whi c h by that time included the other agents’ reports. Guerra then interviewed Jara-Favela. Jara-Favela told Guerra that he h a d c o m e f r o m Nuevo Laredo, intending to go to his home in Laredo. He claimed that he did not know he was being deported a month earlier when he had been escorted to the border at Del Rio. He claimed he was trying to apply for readmission earlier in the day. A grand jury charged Jara-Favela in a singl e -count indictment with attempted illegal reentry of the U nited States following his deportation in violation of 8 U.S.C. § 1326. A superseding indictment added two more counts against Jara-Favela. Count 2 charged Jara-Favela with being unlawfully found in the United States after deportation in violation of 8 U.S.C. § 1326. Count 3

The video foo tage wa s auto mat ical ly eras ed aft er thirty days

. Avila tes tif ied that he 3 revie we d the videoandes tabl ish ed thatitw as Jara- Favela. 4 Case: 11-40142 Document: 00511902212 Page: 4 Date Filed: 06/27/2012No. 11–40142

charged Jara-Favela with knowingly and willfully making a false, fictitious, and fraudulent material statement and representation to CBP Officers in violation

o f 18 U.S.C. § 1001. Count 3 centered on the allegation that Jara-Favela t o l d DeLeza that he was coming from Lar e d o , T e x a s , but told Avila that he was coming from Nuevo Laredo, Mexico. On the Government’s motion, the district court dismissed Count 2 from the superseding indictment. The case proceeded to trial on Counts 1 and 3. It was the Government’s theory at trial that Jara-Favela e nt e r e d soft secondary inspection from south of the border and attempted to slip through to the United States by convincing officers that he had approached the international bridge from the north. The Government presented the testimony of Escobedo, DeLeza, Avila, Guerra, and other witnesses that showe d, in part, that Jara-Favela had told DeLeza he had come from the north and had told Avila he had come from Mexico. After th e Government rested, Jara-Favela moved for judgment of acquittal, arguing that the Government had not presented enough evidence to support a conviction on either count. The district court acknowledged that JaraFavela’s c ase w a s u n u s ual, but denied his motion. Jara-Favela did not testify and presented no additional evidence. After closing argu m e nt s , the case proceeded to the jury. The district court orally instructed the jury. The jury instructions, in part, summarized the indictment and attempted to explain that the evidence that the Government presented differed slightly from what the indictment charged:

A statement is material if it h a s a t endency to influence or has the capab ility of influencing – influencing a decision by that officer, which, i n this case, is the [CBP]. So the charge here is that, on that same day, that

– in talking about something within the jurisdiction of the [CBP]. And – so, therefore, in connection with this

5 Case: 11-40142 Document: 00511902212 Page: 5 Date Filed: 06/27/2012No. 11–40142 whole business of who I am, and where am I going, and where am I comi n g from, and – and can I come in, or whatever he was doing, that – but that in a material

– that it’s material to what the of f icer’s jurisdiction is, that the Defendant made a false statement, because he stated to one officer that he was coming from Laredo, Texas, which would be necessarily the north. That’s the first north thing north of the bridge. Whereas, he s t ated to the other officer that he was coming from Nuevo Laredo, Mexico. This is a little different, because what the Government is saying – that the Defendant knew that one of the statements was false, that they cannot both be right. So the charge is – the indictment doesn’t allege which was the false one. The Gov e r n m ent – what the indictment all e g es is that he made two conflicting statements to [CBP] people at the bridge, in a material matter, that would have had a tendency or could have influenced their decisions. And that it was knowingly false. That one of the statements – that he made those statements deliberately. And that one of the statements had to be false, because one was “I’m coming from the north,” and one “I’m coming from the south.” And that h e made them intentionally and that he knew that one of them was false. And that it was a matter – it wasn’t a social matter. It wasn’t a minor, irrelevant matter. It was – it was a matter within the jurisdiction of the people at the bridge, the [CBP] people. And that it was – that it was the kind of thing th at – the difference about whether you’re coming from the north or south did have the ability to influence the decisions of the people there at the bridge, of the Customs and Border P ro tection agency people. So that’s – that’s the oth e r count. And you have to decide, again, beyond a reasonabl e doubt
wh e ther you think that’s – the Defendant is guilty o r not. Jara-Favela objected to these instructions, specif ic ally co nte n din g that the district court improperly treated the words “north” and “Laredo” as equivalents.

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The district court overruled Jara-Favela’s objections, and the c a s e went to the jury. During its deliberations, the jury sent a note to the district judge:

Defendant stated, “I’m coming from the North.” Later stated he is coming from Mexico. 1) How should “North” be inter[pret]ed? 2) Does it only mean the U.S. or could it be other than U.S.?
After the judge met with both lawyers, he further instructed the jury, expanding upon his earlier statements relating the words “Laredo” and “north”:

Let me see. Let me – let me c o m e at it this way. We can all take official notice, as a m at ter of simple geography, that the river, a few b l o c ks from here, separates the United States of America from the United States of Mexico. And that the bridge – that’s what the bridge does. It crosses the United St ates of America into the United States of Mexico, and vice versa. And I think we can accept as a geographic fact, that if you’re in that – those offices there, all th ose posts where the people are on either side of the river, either the Mexicans or the United States, if they turn around and look north, they are looking into the United States of America. And they ar e , at least, initially looking into Laredo, Texas. At some other bridge, they’d be looking into McAllen, Roma, or something else. But, at least, th e re – and if they turn south and look they are looking into th e U nited States of Mexico and particularly, Nuevo Laredo, Mexico.
But the distri c t c o urt emphasized to the jury members that they were “free to understand it anyway you want to” and repeatedly reminded them that it was their job to determine whether Jara-Favela’s seemingly inconsistent statements were deliberate falsehoods. The district court further stated,

If you think that north is ambiguous, it means something else, or he perhaps had something e l s e i n mind, and that, therefore, that was not

– n e ither of those statements were really a conflict and, therefore,

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a f al se statement, then [so be it], or if you have a reasonable doubt about that, and added, So I think the focus is more on – on the Defendant, not

what I think he meant, or what you think he meant, but do you – or how you would have interpreted that if you were listening to him. I think question is do you

– do you believe that he was delib e rately making conflicting statements knowing that one o f th em was false.
Jara-Favela renewed his objection to the district court’s i n s t ruction, which, in his view, conflated the word “north” with Laredo. Th e j ury f

ini shed deliberating and found Jara-Favela guilty of both C ount s 1 and 3. Jara-Favela moved the district court to set aside his guilty verdict and enter a judgment of acquittal and, alternative ly , for a new trial based on the Government’s failure to show that Jara-Favela came from Laredo and the district court’s in s t ru c tion that the jury “could infer that north means Laredo, Texas.” The district court denied his motion. After he w a s s e nt e n ced, JaraFavela timely appealed. II Jara-Favela raises three issues on appeal: (1) whether th e district court unconstitutionally directed a verdict by improperly commenting on the evidence while delivering the jury instructions and by its response to the jury’s note; (2) whether the district court constructively amended Count 3 b y improperly commenting on the evide n c e while delivering the jury instructions and by its
response to the jury’s note; and (3) whether the evidence presented at trial was insufficient to support his convictions on both Counts 1 and 3. 4

The partie s do not dis put e, and the rec ord conf irm s, that Jara- Favela pr es erved thes e 4 iss uesf or app eal. 8 Case: 11-40142 Document: 00511902212 Page: 8 Date Filed: 06/27/2012No. 11–40142 A We turn first to Jar a - Favela’s claim that the district court unconstitutionally directed a verdict through its jury instructions. 5 In framing jury instructions, a district court’s discretion is broad. United States v. McKinney , 53 F.3d 664, 676 (5th Cir. 1 9 9 5 )

. While the district court cannot determine any element of the offense for the jury, see Ap p re ndi v. New Jersey , 530 U.S. 466, 476–77 (2000), it may comment on the evi d ence. United States v. Johnson , 718 F.2d 1317, 1324 (5th Cir. 1983) (en banc). If the district court chooses to comment on the evidence, it must instruct the jury that it is not bound by its comments or questions; it must also be careful not to take command of the jury and apply the law to the facts as it understands them and “not go so far in his remarks as to seriou s ly p rejudice the defendant.” Id. at 1325; see United States v. Musgrave , 444 F.2d 755 , 761 (5th Cir. 1971) (cautioning that “the trial judge must be extremely careful to refrain from becoming an advocate for the Government”). The Supreme Court has explained: This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be ex e r cised in conformity w ith the standards governing the judicial of f i ce. In commenting upon testimony he may not assume the role of a witness. He may analy ze and dissect the evidence, but he may not either distort it or a d d t o it. His privilege of comment in order to giv e appropriate assistance to the jury is too important to be left without safeguards against abuses.

. . . Th[e Supreme] [C]ourt has accordingly emphasized the duty

We genera lly revie w jury ins tru cti ons “by det erm ining ‘w heth er the court’s char ge, 5 as a wh ole, is a corr ectstat em ent of the lawandwhether itclearly inst ruc tsjurorsas to the princip les of l a w a p plicable to the fac tual iss ues conf ronting them .’” Uni ted States v. McKinn ey , 53 F.3d664, 676 (5th Cir. 1995) (quo ting Uni ted States v. Stacey , 896 F.2d75, 77 (5th Cir. 1990) )

. We will only rever se if “th e ins tru cti ons tak en as a wh ole do not correc tly ref lectthe iss uesandla w. ” Id. 9 Case: 11-40142 Document: 00511902212 Page: 9 Date Filed: 06/27/2012No. 11–40142 of the trial judge to use great care that an expression of opinion upon the evidence “should be so given as not to mislead, and especially that it should not be one-sided.” Quercia v. United States , 289 U.S. 466, 470 (1933) (quoting Hickory v. U n i t ed States , 160 U.S. 408, 423 (1896)). To rise to the level of “con s tit u tional error, the trial judge’s statements, viewed as a whole, must have amounted to an intervention that could have led the jury to a predisposition of guilt by improperly confusing the function of judge and prosecutor.” United States v. Munoz , 150 F.3d 401, 413–14 (5th Cir. 1998) (citation omitted). “In determining whether the trial judge overstepped the limits imposed on the judge’s conduct, this Court must view the proceedings as

a wh o l e.” United States v. Carpenter , 776 F.2d 1291, 1294 (5th Cir. 1985); s e e also United States v. Lance , 853 F.2d 1177, 1182 (5th Cir. 1988) (“ [ E ]ven a comment arguably suggesting a judge’s opinion concerning guilt is not

nec e s s arily reversible error but must be reviewed under the totality of the circumstances, considering factors such as the context of the remark, the person to whom it is directed, and the presence of curative instructions.”). Ultimately, the district court retains “wide latitude in commenting on the evidence during his instructions to the jury, but he has no power to direct a verdict of guilty,” or take from the jury the issue of the defendant’s guilt. United States v. Skinner , 437 F.2d 164, 165 (5th Cir. 1971) (quoting Mims v. United States , 375 F.2d 135, 148 (5th Cir. 1967)). J ar a - F avela asserts that the district court usurped the jury’s role i n assessing crucial elements of the false statement offense as charged in Count 3 by instructing the jury that (1) Jara-Favela’s statement that he was coming from Laredo, Texas, “would necessa rily be north;” (2) from the perspective of the international bridge, north is Laredo and south is Mexico; and (3) one of his statements was false “becaus e th e y c a nnot both be right.” By instructing the

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jury that Laredo is necessarily north, and that, on the bridge , n o rth is Laredo

an d s outh i s Nu evo Laredo, Jara-Favela contends that the district court provide d evidence on facts not alleged in the indictment and never proven to the jury and,
moreover, eliminated any doubt as t o the meaning of Jara-Favela’s actual statements. By further instructing the jury that Jara-Favela’s statements could not both be right, Jara-Favela asserts, the district court prevented the jury from deciding whe th e r Jara-Favela knew “in fact that one of these statements was false” as charged in the indictment. Jara-Favela stresses that the Government

neve r p resented evidence as to what his statements meant. Jara-Favela underscores that both of Jara-Favela’s statements could be right and he very well could have been speaking truthfully, when he told one agent he came from the north and another that he came from Mexico. The Gove r n m e nt r e sponds that the record as a whole shows that the court’s comments did not seriously prejudice J ara-Favela. First, the Governm e nt s t r esses, the district court’s instructions were accurate in that Laredo is directly north of the bridge and Mexico is directly south of the bridge. The Government contends that the instruction did not usurp the jury’s authority but instead facilitated the d e c i sion-making process by focusing the jury’s attention on the issue of whether Jara-Favela ma d e a false statement. Furthermore, the Government asserts that even if there was error, the district court provided numero u s curative instructions. Placed in context, the Government asserts that the district court’s statements in this case fall short of being substantially prejudicial. We conclude that the distri c t c o urt’s remarks did “not go so far in his remarks as to seriously prejudice the defendant.” Johnson , 718 F.2d at 1325; see id. at 1319, 1325 (reversing a conviction because the district court instructed the jury that they must find a specific question as a matter of law rather than leaving the question for the jury to determine). In charging error, Jara-Favela

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s t ri p s the district court’s statements of their context and misconstrues their intent. The district court’ s s t atements on Laredo’s being north of the i nt ernational bridge came first in the context of its attempt to summarize th e charges alleged in the indictment and the evidence that the Government presented at trial. Al th o ugh these instructions were possibly confusing, the district court’s response to the jury note recognized this potential confusion and made clear that although Laredo is north of the border, “north,” as spoken by Jara-Favela, did not have to mean Laredo and could ev e n b e ambiguous in meaning. The district court sough t t o m ake clear that what Jara-Favela intended by “north” was a question for the jury to decide and repeatedly stressed that th e j u ro r s were free to understand the evidence in any way they found appropriate, regardless of anything the court said or what the Government claimed. Cf. Carpenter , 776 F.2d at 1294 (affirm i n g o n plain error review, despite district court’s statement in front of the jury that it “had ye t t o h e ar a defense,” due to lack of substantial prejudice because, in part , “tri al was conducted impartially,” the substantial evidence presented by the Government, and the district court’s curative instructions.). Jara-Favela’s challenge to the district court’s statement that one of JaraF av e l a ’s statements was necessarily false does not show error for the same

reason: viewed in the broader context of the j u ry i n s tructions as a whole, it is clear that the district court was only laying out the Government’s allegations and the evidence, r ath e r th a n telling the jury it was bound to reach a specific conclusion. The district court si m p ly summarized the Government’s position that one statement was false, and that it was knowingly false, and that it was deliberate, and that one statement (either one) had to be false because they are directly c ontradictory. Rather than directing a verdict, the district court commented on the evidence so the jury could understand the Government’s allegations.

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Because the district court acknowledged that his initial instructions to the jury may have prescribed a narrower view of the evidence than permissible and then took steps to cure any potential error by clarifying his statements and reminding the jurors of their f a c tfinding authority, we cannot say that the district court’s instructions and comments to th e j u ry exceeded the district court’s power to comment on the evidence. See Lance , 853 F.2d at 1182 (“[W]e cannot evaluate a claim of judicial misconduct during a trial by viewing a single statement in isolation

. . . . [E]ven a comment arguably suggesting a judge’s opinion concerning guilt is not necessarily reversible error but must be reviewed under the totality of the c ir c u m s t ances, considering factors such as . . . the presence of curative instructions.”). B Jara-Favela also contends that the district court’s instructions to the jury constructively amended his i ndictment. We review constructive amendment claims de novo. United States v. McM i l l i a n , 6 0 0 F.3d 434, 450 (5th Cir.), cert. denied , 131 S. Ct. 504 (2010). In reviewing a claim of constructive amendment, however, we are mindful to distingu i sh between a constructive amendment, which is reversible per se, and a variance between the indic t ment and proof, whic h w e e x a m i n e for harmless error. See United States v. Adams , 778 F.2d 1117, 1123 (5th Cir. 1985) (excerpting the discussion of Stirone v. United States , 361 U.S. 212 ( 1960) in Gaither v. United Stat e s , 4 1 3 F

. 2d 1061, 1072–74 (D.C. Cir. 1969)). I f a grand jury indicts a defen d a nt , th e Fif th Am e n d m e nt gr a nt s th e defendant the right to be tried sol e ly on the grand jury’s allegations. Stirone , 361 U.S. at 215–18. Only the grand jury may broaden or alter the indictment. United States v. Arlen , 947 F.2d 1 3 9 , 144 (5th Cir. 1991). A constructive amendment may occur when the trial court “through its instructions and facts it pe r m it s i n evidence, allows proof of an essential element of the crime on an

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alternative basis provided by the statute but not charged in the indictment.” United States v. Phillips , 477 F.3d 215, 222 (5th Cir. 2007) (quotation omitted). In evaluating whether a constructive amendment has occurre d , we consider “whether the jury instruction, taken as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them.” United States v. Guidry , 406 F.3d 314, 321 (5th Cir. 2005) (quotation omitted). We “scrutinize any dif f e rence between an indictment and a jury instruction” and “will reverse only if that difference allows the defendant to be convicted of a separate crime f r om the one for which he was indicted.” United States v. Nunez , 180 F.3d 227, 2 3 1 ( 5 th C ir . 1999). Otherwise, we review the purported amendment as a variance, and the defendant m ust “show how the variance in the language between the jury charge and the indictment so severely prejudiced his defense th at it requires reversal under harmless error review.” Id. ; see United States v. Baker , 17 F.3d 9 4 , 9 8 ( 5th Cir. 1994) (explaining that “[a] variance is material only if it prejudices the defendant's ‘substantial rights,’ eithe r b y s u rp ri sing the defendant at trial or by placing him at risk of double jeopardy.”). Jara-Favela asserts that the district court’s statement to the jury constructively amended his indictment because Count 3 was very specific in its charge: Jara-Favela “stated to Customs and Border Protection Officer Zachary Deleza, that he was coming from Laredo, Texas but he stated to CBP of f i c e r Isidro Avila that he was coming from Nuevo Laredo, Mexico

. . . [and he] knew that in truth and i n f

act that one of these statements was false.” Jara-Favela contends that the evidence was not so specific and showed only that Jara-Favela told DeLeza that he was coming from the north and Avila that he was coming from Mexico. The Government responds that the variances between the terms

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“Laredo, Texas” and “north,” and “Nuevo Laredo” and “south,” are not material and did not affect Jara-Favela’s ability to defend himself. Allowing a conviction on DeLeza’s testimony that Jara-Favela said north and Avila’s testimony that he said Mexico, instead of the m o r e specific terms Laredo and Nuevo Laredo, does not amount t o allowing a conviction on an alternative basis than charged in the indictment. See Phillips , 477 F.3d at 222. The evidence supported interpreting th e t e r m s as synonymous within the context of the port of entry and showed that, at the very least, Jara-Favela told DeLeza he came from the north and Avila that he came from Mexico. The jury remained free to infer from Jara-Fav e l a’s statements that he was trying to convince DeLeza he was coming from Laredo in order to cross the border. Thus, 6 Jara-Favela has shown only a variance between the terms of the indictment and the evidence produced at trial, and the only question we must address is whether the variance was material—that is, whether it severely prejudiced Jara-Favela’s defense. It did not. Jara-Favela was free to advocate the opposite inference to the jury, and he in fact did. The district court ’ s i n s t ru c tions did not foreclose Jara-Favela’s d e f

e n se or improperly limit the jury’s decision-making. JaraFavela thus has shown neither a constructive amendment nor a variance rising to the level of reversible error. See Nunez , 180 F.3d at 231. C Lastly, Jara-Favela disputes the sufficiency of the evidence to support his two convictions. Our review of the sufficiency of the evidence i s “highly deferential to the verdict.” United States v. Harris , 293 F.3d 863, 869 (5th Cir. 2002). “[V]iewing the evidence in the light most favorable to the prosecution,”

we consider whether “any rational trier of fac t c o u ld have found the essential

Ha d the evide n ce pr es ente d at tri al diver ged further fr om the fac ts allege d in the 6 indi ctm ent, our analys is coul d be dif fer ent. See general ly Uni ted States v. Ada ms , 778 F.2d 1117 (5th Cir

. 1985)

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elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We “accept[] all credibility choices and reasonable inferences

m a d e b y th e trier of fact which tend to support the verdict,” United States v . Asibor , 109 F.3d 1023, 1030 (5th Cir . 1 9 9 7) , a nd thus limit our inquiry “to whether the jury’s verdict was r e asonable, not whether we believe it to be correct.” United States v. Williams , 264 F.3d 561, 576 (5th Cir. 2001). “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States

v. Lage , 183 F.3d 374, 382 (5th Cir. 1999). Any conflict in the evidence must be resolved in favor of the jury’s verdi c t

. U n ited States v. Duncan , 919 F.2d 981, 990 (5th Cir. 1990). 1 Count 3 charged Jara-Favela with violating 18 U.S.C. § 1001. To convict Jara-Favela under § 1001, the Government had to prove be yo n d a reasonable doubt that Jara-Favela (1) made a statement (2) that was false (3) and material (4) knowingly and willfully and (5) that falls within agency jurisdiction. United States v. Hoover , 467 F.3d 496, 499 (5th Cir. 2006). Count 3 specifically alleged that Jara-Favela told DeLeza that he was coming from Laredo and Avila that he was coming from Mexico. Jara-Favela asserts that there was no evidence th at h e made either of these statements. Rather, he asse rt s , the evidence showed he made slightly different statements—that he told DeLeza he was coming from the north and Avila that he was coming from Mexico. Because the Governm e nt f ailed to present evidence that Jara-Favela made the false statements as charged in the indictment, and because the Government failed to present evidence proving that “north” and “Laredo” are the same, h e m ai nt ains that the evidence was insufficient to convict him on Count 3 as a matter of law. Jara-Favela stresses that alternative interpretati o n s were possible because his statement that he

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came from the north was ambiguous: for example, it could have meant that he

came from Mexico, or it could have reflected that he was “f r o m” Laredo, given the fact that he lived there for thirty-five years. The Government responds that th e evidence was sufficient to support Jara-Favela’s convicti o n b e cause the trial testimony and evidence showed: (1) the bridge was located in Laredo, Texas, and it connected Mexico to the United States; (2) if a pedestrian walked through th e b ri d g e coming through Nuevo Laredo, Mexico, he would cross into Texas; (3) from the perspective of the bridge, “north” means the United S t at es and “south” means “Mexico”; (4) Jara-Favela told DeLeza he was coming f ro m th e n o rth; (5) Jara-Favela told Avila that he

was coming from Mexico; (6) Jara-Favela told Guerra that he was coming from Nuevo Laredo and that his intentions were to go to his house in Laredo, Texas. Reviewing the evidence in the li gh t m o st favorable to the jury’s verdict, the Government asserts, any rational trier of fact could conclude that “north” in this instance was synonymous with “Laredo, Texas” and that “coming from Mexico” at the border was synonymous with coming from Nuevo L aredo, Mexico. The Government therefore maintains that any rational trier o f f a c t could also find beyond a reasonable doubt that Jara-Favela made a false statement to CBP by stating to one officer that he was coming from the north—that is , L aredo, Texas—and stating to another that he was coming from Mexico—that is, Nuevo Laredo—knowing that one of these statements was false. Because a rational trier of fact could interpret the evidence to show beyond

a reasonable doubt that Jara-Favela deliberately made conflicting, material statements to CBP officers, we agree that sufficient evidence existed to convict Jara-Favela on Count 3. The Government showed that Jar a - Favela made conflicting statements to DeLeza and Avila, and argued that he did so with the intent to deceive. Guerra’s testimony that Jara-Favela admitted he came from Nuevo Laredo and h o p e d to get to his house in Laredo supported the

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Government’s position. While it is conceivable that the jury could have accepted the opposite infere nc e s p r oposed by Jara-Favela, a reasonable trier of fact nonetheless could find that in light of the fact that Jara-Favela was standing on

a bridge at the border of two countries, where one is north and one is south, his

c o m m e nt that he came from the north referred to the country from the north. See United States v. Loe , 262 F.3d 427, 432 (5th Cir. 2001) (explaining that the jury “retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.”). We need not “exclud e e v e ry reasonable hypothesis of innocence” to affirm. See Lage , 183 F.3d at 382. Vi e wi n g the evidence in the light most favorable to the verdict, see Duncan , 919 F.2d at 990, we conclude that Jara-Favela has not shown error. 2 Count 1 charged Jara-Favela with violating 8 U.S.C. § 1326. To prove a charge of attempted reentry into the United States by a deported alien under § 1326, the Government must prove beyond a reasonable doubt that Jara-Favela (1) was an alien at the time of the alleged offense; ( 2 ) h ad been previously deported; (3) attempted to enter the United States; and (4) had not received the
express consent of the Attorney General or the Secretary of the Department of Homeland Security. See United States v. Cardenas-Alvarez , 987 F.2d 1129, 1131–32 (5th Cir. 1993); see also Pub. L. No. 104-208, § 308(d)(4)(J)(i),(ii) (1997) (amending § 1326 so that arrest is no longer an element of the crime). Because “the crime of illegal reentry is not a specific intent crime, and a mistake of law is thus not a defense,” United States v. Flores-Martinez , 677 F.3d 699 (5th Cir. 2012), the Government must show only Jara-Favela’s general intent to reenter. United States v. Ortegon-Uvalde , 179 F.3d 956 (5th C ir. 1999). It is not in dispute that the Govern m e nt p rove d b eyon d a re a s o n able doubt that Jara-Favela is a previously deported alien who had not received the appropriate consent to enter the U nit ed States. Thus, the parties’ arguments on appeal turn on

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whether the sufficiency of the evidence supports the conclusion that Jara-Favela attempted to enter the United States. Jara-Favela contends that the Government failed to prove that he made

a knowingly false statement to C B P agents because several plausible explanations for his statements and his actions exist. Without a false statement to support its case, Jara-Favela maintains that the Government could not, and did not, prove beyond a reasonable doubt that he attempted to enter the United States illegally. Jara-Favela contends that he reasonably could have requested the orange slip because Escobedo told him that he had to go to the CIS office in Laredo to determine the status of his legal permanent residency. Jara-Favela further contends that the fact that he said his intentions were to return home does not prove that he was attempting to enter the United States illegally. JaraFavela e m p h a s i z es that the agents consistently testified at trial that Jara-Favela told them he was there to ask a question and check on his status as

a legal permanent resident. Jara-Favela maintains that his intentions could have been to ret u r n t o the United States at a later time. Jara-Favela further asserts that it is plausible that Jara-Favela would have returned to Mexico had he been given the correct advice at soft secondary. The Government responds that the evidence was sufficient to prove that Jara-Favela knowingly made a false stat e m e nt to the CBP officers. In the Government’s view, the facts that Jara-Favela (1) came from the south, but told E s c ob edo that he came from the north; (2) requested that she giv e h i m a stamped orange slip that would have signif ied to the primary officer that she h a d ch e c k ed his legal status and approved his entry to the United States; and (3) told DeLeza that he came from the north when he did not receive an orange slip from Escobedo reflect that Jara-Favela intended to enter the United States. Viewing this record in the light most favorable to the verdict, see Duncan , 919 F.2d at 990, we conclude that the sufficiency of the evidence supports Jara19 Case: 11-40142 Document: 00511902212 Page: 19 Date Filed: 06/27/2012No. 11–40142

Favela’s conviction on Count 1. Jara-Favela was a deported alien who had not sought permission to reenter. The evidence, moreover, supported his intent to reenter. Jara-Favela approached a CBP officer and, after being told that the CIS has not issued him a legal residency card since 2005, told her he had come from the north and asked for an orange slip that would give him permission to legally enter the United Stat e s . These actions, combined with his inconsistent statements to CBP officers, support the conclusion that Jara-Favela intended to

cross the border. That an opposite inference could arise from the evidence is not enough. See Lage , 183 F.3d at 382. III For the reasons above, we AFFIRM the district court’s judgment.

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