[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-12347

Non-Argument Calendar

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D.C. Docket No. 9:19-cr-80008-DMM-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JUAN JOSE SOLIS, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 8, 2019)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM: 

Juan Solis, a native and citizen of Mexico, appeals from his conviction for 

being found in the United States after being previously removed, in violation of 

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8 U.S.C. § 1326(a), (b)(2). He argues, for the first time on appeal, that his 

conviction should be vacated because the government failed to prove beyond a 

reasonable doubt that he entered the United States “surreptitiously,” as required

under § 1326(a). We disagree and affirm.

I. Background

Testimony at trial established that Solis first came to the United States with 

his parents as a child. Solis was issued a green card in 2001, which expired in 

2003. In 2007, Solis was ordered removed to Mexico, and he was removed in 

October 2008. After his removal, Solis did not apply for readmission to the United 

States. 

In February 2009, Solis’s father, Juan Solis Ortiz, Sr., drove to Mexico and 

brought his son back to the United States. The father testified that the pair crossed 

the United States-Mexico border by vehicle at a border crossing entry point in 

Texas, with Solis in the passenger seat. The father stated that he provided 

identification documents for both himself and Solis to the border agent. 

Specifically, the father provided Solis’s old green card to the border agent as 

Solis’s identification. The father stated that they did not mention to the agent that 

the card had expired, and they were permitted to cross the border. However, a 

deportation officer with Immigration and Customs Enforcement testified that a 

search of the Department of Homeland Security’s (“DHS”) database of entries 

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made into the United States revealed that, while Solis’s father entered the United 

States from Mexico in February 2009, records indicated that Solis’s father was 

traveling alone. 

In January 2019, Solis was discovered and arrested in the United States by 

DHS officers. Solis was thereafter charged with one count of being found in the 

United States after having been previously removed. He was convicted by a jury 

and sentenced to 12 months and 1-day imprisonment. This appeal follows. 

II. Standards of Review

We generally review the sufficiency of the evidence de novo. United States 

v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). Solis, however, did not move for a 

judgment of acquittal on the specific ground he now raises on appeal,1 and, 

therefore, we review his claim for plain error. See United States v. Joseph, 709 

F.3d 1082, 1093 (11th Cir. 2013) (“We review unpreserved objections for plain 

error, including unpreserved objections . . . to the sufficiency of the evidence.” 

(internal citation omitted)); United States v. Hunerlach, 197 F.3d 1059, 1068–69 

(11th Cir. 1999) (applying plain error review where a defendant moved for a

judgment of acquittal but failed to articulate the specific sufficiency-of-the1 At trial, Solis argued that he was entitled to a judgment of acquittal pursuant to Rule 29, in part, 

because (1) the government failed to present evidence that he was removed and came back 

without permission; and (2) the government presented no evidence that showed that he knew that 

he was in the United States illegally. 

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evidence claim later raised on appeal). Under plain-error review, “there must be 

(1) an error (2) that is plain and (3) that has affected the defendant’s substantial 

rights; and if the first three prongs are met, then a court may exercise its discretion 

to correct the error if (4) the error ‘seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314, 

1320 (11th Cir. 2013) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

“When we review whether the evidence is sufficient to support a conviction, 

we view the evidence in the light most favorable to the prosecution and draw all 

reasonable inferences and credibility choices in favor of the jury verdict.” Joseph, 

709 F.3d at 1093. “[W]e must affirm a conviction unless there is no reasonable 

construction of the evidence from which the jury could have found the defendant[]

guilty beyond a reasonable doubt.” Id.

III. Discussion

Solis does not dispute that he was previously deported and re-entered the 

United States in February 2009 without permission. Nevertheless, he maintains 

that there was no evidence that he re-entered the United States “surreptitiously,” 

which he argues is required to support his conviction for being “found in” the 

United States after being previously deported. In support of his argument, he relies 

on our prior decision in United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir. 

1991).

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Under 8 U.S.C. § 1326(a), it is unlawful for any alien who has been 

previously removed or deported to “enter[], attempt[] to enter, or [be] at any time 

found in, the United States,” unless the alien has the prior consent of the Attorney 

General, or the alien establishes “that he was not required to obtain such advance 

consent.”

In Canals-Jimenez, an alien, who was previously deported from the United 

States, was arrested and charged with, and later convicted of, being “found in” the 

United States after his flight from the Dominican Republic to Montreal, Canada

landed in Miami International Airport for a connecting flight. 943 F.2d at 1285–

86. On appeal, we reversed his conviction, concluding that he was not “found in” 

the United States, within the meaning of § 1326(a). Id. at 1288–89. In reaching 

this conclusion, we reasoned that, under § 1326(a), “[i]n order for ‘found in’ and 

‘enters’ to have different meanings, thus to avoid ‘enters’ being a mere 

redundancy, ‘found in’ must apply to aliens who have entered surreptitiously, 

bypassing a recognized immigration port of entry.” Id. at 1287 (emphasis added). 

We further reasoned that “[a]ny party who voluntarily approaches an [Immigration 

and Naturalization Service] station cannot be said to have been found or 

discovered in the United States,” and that “Congress added the phrase ‘found in’ to 

alleviate the problem of prosecuting aliens who enter in some illegal manner.” Id. 

Thus, Solis argues that under our decision in Canals-Jiminez, in order to be 

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convicted of being “found in” the United States, the government had to prove that 

he entered the United States surreptitiously. 

However, in United States v. Gay, 7 F.3d 200, 202 (11th Cir. 1993), we 

rejected the exact argument upon which Solis relies, holding that “the reference in 

Canals to surreptitious entry is mere dicta and is not controlling.” Thus, Solis’s 

claim is foreclosed by binding precedent and there was no plain error. 

Notwithstanding our holding in Gay, even assuming that the government 

was required to prove a surreptitious entry, viewing the evidence in the light most 

favorable to the jury verdict, the jury could have reasonably inferred that Solis 

surreptitiously re-entered the United States based on the DHS records which 

indicated that Solis’s father was the only occupant of the vehicle when it crossed 

the border in February 2009. See Joseph, 709 F.3d at 1093 (“[W]e must affirm a 

conviction unless there is no reasonable construction of the evidence from which

the jury could have found the defendant[] guilty beyond a reasonable doubt.”). 

Accordingly, we affirm his conviction.

AFFIRMED.

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