FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50192

Plaintiff-Appellee, D.C. No.

v. 3:08-cr-02412-  LAB-1 SAMUEL OROZCO-ACOSTA, aka

Benito Contreras-Mesa, ORDER AND

Defendant-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

March 2, 2010—Pasadena, California

Filed May 26, 2010

Amended June 9, 2010

Before: William C. Canby, Jr., Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Canby

8333
COUNSEL

Matthew J. Gardner, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

James Fife, Assistant Federal Public Defender, San Diego,

California, for the defendant-appellant.

ORDER

The opinion in this case filed by this court on May 26,

2010, slip op. 7534, is amended as follows:

At slip op. at 7538, first sentence of the second full paragraph, indicate a footnote following “Because the government

concedes that the introduction of the CNR violated OrozcoAcosta’s confrontation right,”. The indicated footnote is to be

numbered 3, with following footnotes renumbered accordingly. The new footnote 3 then is to state:

The government was well-advised to make this concession. Although prior to the Supreme Court’s decision in Melendez-Diaz, our case law consistently

held that a CNR was nontestimonial, see, e.g.,

8336 UNITED STATES v. OROZCO-ACOSTA
United States v. Cervantes-Flores, 421 F.3d 825,

830-34 (9th Cir. 2005); United States v. SalazarGonzalez, 458 F.3d 851, 853-54 (9th Cir. 2006), that

line of decisions is clearly inconsistent with

Melendez-Diaz. Melendez-Diaz held to be testimonial affidavits reporting the results of forensic analysis establishing that seized material was cocaine. 129

S. Ct. at 2532. The affidavits were held to be testimonial primarily because they were statements of

what a witness would testify if called and were prepared for the known purpose (indeed, the only purpose) of use at the defendant’s trial. Id. This

reasoning is clearly applicable to the CNR in this

case, and is irreconcilable with our prior decision in

Cervantes-Flores and its progeny. Accordingly, we

are required to follow Melendez-Diaz and to consider our prior decisions overruled to the extent of

their irreconcilability with Melendez-Diaz. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)

(holding that where intervening higher authority is

irreconcilable with established circuit law, a threejudge panel “should consider [itself] bound by the

intervening higher authority and reject the prior

opinion of this court as having been effectively overruled”). Thus, the CNR in the present case is testimonial.

OPINION

CANBY, Circuit Judge:

Samuel Orozco-Acosta was convicted by a jury of illegally

re-entering the United States following removal, in violation

of 8 U.S.C. § 1326. On appeal, Orozco-Acosta contends that

the admission into evidence of a certificate of non-existence

of record and of a warrant of removal violated his rights under

UNITED STATES v. OROZCO-ACOSTA 8337
the Sixth Amendment’s Confrontation Clause. He also challenges the district court’s refusal to give a requested jury

instruction and argues that his sentence was procedurally and

substantively unreasonable. We have jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm OrozcoAcosta’s conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2008, a border patrol agent discovered OrozcoAcosta, a Mexican national, just north of the United StatesMexico border in a desolate area frequented by aliens illegally

crossing into the United States. Orozco-Acosta admitted to

the agent that he was a Mexican citizen and had no documents

allowing him to be in the United States legally. He also later

gave a sworn statement indicating that he had been deported

earlier that year and had not sought permission to re-enter. 

A federal grand jury indicted Orozco-Acosta for being

found in the United States following removal, in violation of

8 U.S.C. § 1326.1 Prior to trial, the government moved in

1

8 U.S.C. § 1326 provides, in pertinent part: 

(a) . . . [A]ny 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; or (B) with respect to an

alien previously denied admission and removed, unless

such alien shall establish that he was not required to

obtain such advance consent under this chapter or any

prior Act, 

shall be fined under Title 18, or imprisoned not more than 2

years, or both. 18 U.S.C. § 1326(a). 

8338 UNITED STATES v. OROZCO-ACOSTA
limine to introduce a warrant of removal to establish that

Orozco-Acosta had been deported from the United States on

January 26, 2008. The government also sought to introduce a

certificate of non-existence of record (“CNR”) to show that

there was no record that Orozco-Acosta had ever applied for,

or been granted, permission to re-enter the United States following his removal.2

 The district court overruled OrozcoAcosta’s objections that admission of these documents would

violate his rights under the Sixth Amendment’s Confrontation

Clause, and both documents were admitted into evidence at

Orozco-Acosta’s trial. 

The jury also heard the testimony of Agent Dwain Holmes,

the custodian of Orozco-Acosta’s Alien Registration File (“AFile”). An A-File contains paper records concerning an alien’s

immigration status, including records of removal and applications for re-entry. Agent Holmes testified that his review of

Orozco-Acosta’s A-File, as well as an agency computer database, C.L.A.I.M.S., disclosed no documentation that OrozcoAcosta had applied for permission to re-enter the United

States. 

The jury found Orozco-Acosta guilty of violating 8 U.S.C.

§ 1326. The district court sentenced Orozco-Acosta to

seventy-one months in prison, followed by three years of

supervised release, and ordered a $100 assessment.

2The permission required by § 1326(a)(2)(A) is the consent of the Attorney General to the alien’s reapplying for admission. See note 1, supra.

Because admission is ordinarily a routine procedure once the Attorney

General consents to reapplication, we and the parties frequently use the

common shorthand of referring to the Attorney General’s consent as “consent to re-admission or re-entry.” 

UNITED STATES v. OROZCO-ACOSTA 8339
DISCUSSION

I. Confrontation Clause

[1] The Confrontation Clause of the Sixth Amendment

guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the

Confrontation Clause guarantees a defendant’s right to confront those “who ‘bear testimony’ ” against him. Id. at 51

(citation omitted). The Court ruled that “[t]estimonial statements of witnesses absent from trial [are admissible] only

where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59.

The Court described various formulations of the “core class”

of testimonial statements without expressly endorsing any formulation. Id. at 51-52. Among the examples so discussed

were “statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions” as well as “statements that were made under

circumstances which would lead an objective witness reasonably to believe that the statement would be available for use

at a later trial.” Id. at 51-52 (ellipsis, internal quotations and

citations omitted). On the issue before it, the Court held that

statements taken by investigating police officers during interrogations were testimonial “under even a narrow standard.”

Id. at 52.

Recently, in Melendez-Diaz v. Massachusetts, 129 S. Ct.

2527 (2009), the Supreme Court shed additional light on the

contours of the term “testimonial.” The Court held that “certificates of analysis” by laboratory technicians confirming that

substances possessed by the defendant were cocaine were testimonial statements under Crawford. Id. at 2532. The Court

emphasized that the certificates were “quite plainly affidavits”

and were “functionally identical to live, in-court testimony.”

Id. at 2532. Moreover, not only were the certificates “ ‘made

8340 UNITED STATES v. OROZCO-ACOSTA
under circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial,’ ” id. (quoting Crawford, 541 U.S. at

52), but under state law the “sole purpose of the affidavits”

was to provide evidence at trial. Id.

Relying upon Melendez-Diaz, Orozco-Acosta challenges

the district court’s introduction into evidence of the CNR and

the warrant of removal. He argues that both the CNR and the

warrant of removal are testimonial and that, because he never

had the opportunity to cross-examine their declarants, the

introduction of these documents violated his right to confront

witnesses against him. The government concedes that introduction of the CNR was error under Melendez-Diaz, but

argues that the error was harmless beyond a reasonable doubt.

The government also maintains that introduction of the warrant of removal into evidence did not violate the Confrontation Clause post-Melendez-Diaz. 

Certificate of Non-Existence of Record (CNR)

To convict Orozco-Acosta of violating § 1326, the government was required to prove that Orozco-Acosta, after being

removed, re-entered the United States without permission to

reapply for admission. See 8 U.S.C. § 1326(a)(2)(A); United

States v. Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir.

1994). As part of its proof on this element, the government

introduced the CNR, in which a District Director of the Citizenship and Immigration Services of the Department of

Homeland Security certified that “after a diligent search [of

two agency databases,] no record was found to exist indicating that [Orozco-Acosta] obtained consent . . . for readmission in the United States.” 

[2] Because the government concedes that the introduction

of the CNR violated Orozco-Acosta’s confrontation right,3

3The government was well-advised to make this concession. Although

prior to the Supreme Court’s decision in Melendez-Diaz, our case law conUNITED STATES v. OROZCO-ACOSTA 8341
“we must remand for a new trial unless the government demonstrates beyond a reasonable doubt that admission of the evidence was harmless.” United States v. Norwood, ___ F.3d

___, 2010 WL 1236319, at *3 (9th Cir. Apr. 1, 2010). In evaluating whether a Confrontation Clause violation is harmless,

we consider a variety of factors, including:

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the

witness on material points, the extent of crossexamination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). We conclude that the government has met its burden of proving

harmlessness in this case. 

[3] First, the CNR was cumulative of other evidence.

Agent Holmes testified that if Orozco-Acosta had filed the

sistently held that a CNR was nontestimonial, see, e.g., United States v.

Cervantes-Flores, 421 F.3d 825, 830-34 (9th Cir. 2005); United States v.

Salazar-Gonzalez, 458 F.3d 851, 853-54 (9th Cir. 2006), that line of decisions is clearly inconsistent with Melendez-Diaz. Melendez-Diaz held to

be testimonial affidavits reporting the results of forensic analysis establishing that seized material was cocaine. 129 S. Ct. at 2532. The affidavits

were held to be testimonial primarily because they were statements of

what a witness would testify if called and were prepared for the known

purpose (indeed, the only purpose) of use at the defendant’s trial. Id. This

reasoning is clearly applicable to the CNR in this case, and is irreconcilable with our prior decision in Cervantes-Flores and its progeny. Accordingly, we are required to follow Melendez-Diaz and to consider our prior

decisions overruled to the extent of their irreconcilability with MelendezDiaz. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (holding

that where intervening higher authority is irreconcilable with established

circuit law, a three-judge panel “should consider [itself] bound by the

intervening higher authority and reject the prior opinion of this court as

having been effectively overruled”). Thus, the CNR in the present case is

testimonial. 

8342 UNITED STATES v. OROZCO-ACOSTA
form required to reapply for admission, this fact would have

been documented both in Orozco-Acosta’s A-File and in the

agency’s C.L.A.I.M.S. database, but no such documentation

appeared in either place. Any doubt arising from the possibility that Agent Holmes’s record search was less comprehensive than the search conducted for the CNR was allayed by

the introduction of Orozco-Acosta’s own sworn statement that

he had not applied for permission to re-enter, as well as the

arresting agent’s testimony that Orozco-Acosta admitted that

he lacked documents allowing him to be in the United States

legally. The jury also could infer that Orozco-Acosta lacked

permission to re-enter the United States from the circumstances of his apprehension: rather than entering through a

designated Port of Entry, as would be expected if OrozcoAcosta had received permission to re-enter the United States,

Orozco-Acosta was apprehended in a desolate, inhospitable,

and uninhabited border area. Thus, the government’s case on

the lack-of-permission element was overwhelming, even

without the CNR. 

[4] Orozco-Acosta had an adequate opportunity to crossexamine the witnesses who testified against him. These witnesses included Agent Holmes, who reviewed OrozcoAcosta’s A-File, Agent Bourne, who prepared OrozcoAcosta’s sworn statement, and Agent Thompson, who apprehended Orozco-Acosta near the border. We reject OrozcoAcosta’s contention that his ability to cross-examine Agent

Holmes was unduly limited by the district court’s refusal to

order the production of notes Agent Holmes made while

reviewing Orozco-Acosta’s A-file.4 Nothing prevented counsel for Orozco-Acosta from pressing Agent Holmes on the

4To the extent that Orozco-Acosta challenges the district court’s refusal

to compel production of the notes as a matter of the Jencks Act, 18 U.S.C.

§ 3500(b), we hold that this challenge fails. We find the notes akin to

notes of surveillance observations, which are not covered by the Jencks

Act. See United States v. Bobadilla-Lopez, 954 F.2d 519, 521-23 (9th Cir.

1992); United States v. Bernard, 623 F.2d 551, 557-58 (9th Cir. 1980). 

UNITED STATES v. OROZCO-ACOSTA 8343
manner in which he conducted the A-File search, but counsel

did not do so. In fact, the question of whether Orozco-Acosta

had applied for permission to re-enter the United States was

never seriously challenged at trial. Thus, “we are convinced

beyond any reasonable doubt . . . that the jury would have

convicted [Orozco-Acosta] on the elements of [§ 1326]

regardless of the [introduction of the CNR].” Norwood, 2010

WL 1236319, at *4.

Warrant of Removal

To convict Orozco-Acosta, the government also was

required to prove beyond a reasonable doubt that OrozcoAcosta, prior to being apprehended, had in fact been physically removed from the United States. See, e.g., United States

v. Estrada-Eliverio, 583 F.3d 669, 671 (9th Cir. 2009). As

part of its proof, the government introduced the warrant of

removal, which both ordered that Orozco-Acosta be removed

from the United States and also documented Orozco-Acosta’s

physical removal to Mexico. We review de novo whether the

admission of this warrant violated Orozco-Acosta’s confrontation right. See, e.g., United States v. Orellana-Blanco, 294

F.3d 1143, 1148 (9th Cir. 2002). 

[5] Resolution of this issue is controlled by our previous

decision in United States v. Bahena-Cardenas, 411 F.3d 1067

(9th Cir. 2005). In Bahena-Cardenas, we held, postCrawford, that a warrant of removal is “nontestimonial

because it [is] not made in anticipation of litigation, and

because it is simply a routine, objective, cataloguing of an

unambiguous factual matter.” Id. at 1075. We reasoned that

warrants of removal have “inherent reliability because of the

Government’s need to keep accurate records of the movement

of aliens.” Id. (quoting United States v. Hernandez-Rojas, 617

F.2d 533, 535 (9th Cir. 1980)) (internal quotation mark omitted).

We reject Orozco-Acosta’s contention that Melendez-Diaz

has so undermined Bahena-Cardenas that we should depart

8344 UNITED STATES v. OROZCO-ACOSTA
from its holding. See Miller v. Gammie, 335 F.3d 889, 892-93

(9th Cir. 2003) (en banc) (explaining that a three-judge panel

should consider itself bound by an intervening higher authority that is “clearly irreconcilable with the reasoning or theory”

of a prior holding of this court). Orozco-Acosta is correct that,

post-Melendez-Diaz, neither the warrant’s routine, objective

nature nor its status as an official record necessarily immunizes it from confrontation. See Melendez-Diaz, 129 S. Ct. at

2536-40. Bahena-Cardenas’s holding that warrants of

removal are nontestimonial, however, also relied upon the fact

that warrants of removal are “not made in anticipation of litigation,” but rather to record the movements of aliens. 411

F.3d at 1075. Melendez-Diaz explained that “[b]usiness and

public records are generally admissible absent confrontation

. . . because—having been created for the administration of an

entity’s affairs and not for the purpose of establishing or

proving some fact at trial—they are not testimonial.” 129 S.

Ct. at 2539-40 (emphasis added). Thus, far from undermining

Bahena-Cardenas, Melendez-Diaz is wholly consistent with

Bahena-Cardenas.

Orozco-Acosta attacks the underlying premise of BahenaCardenas, arguing that warrants of removal qualify as testimonial because they are “made under circumstances which

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.”

Melendez-Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541

U.S. at 52) (internal quotation marks omitted). The problem

with this argument is that it is based on one of Crawford’s

formulations of testimonial statements. We decided BahenaCardenas after Crawford and squarely held that warrants of

removal are not testimonial under Crawford. BahenaCardenas, 411 F.3d at 1075. We are bound by that determination, and the binding effect is not weakened by the repetition,

without further development, of Crawford’s “objective witness” formulation in Melendez-Diaz. See Melendez-Diaz, 129

S. Ct. at 2542 (“This case involves little more than the application of our holding in Crawford . . . .”). 

UNITED STATES v. OROZCO-ACOSTA 8345
[6] Melendez-Diaz, moreover, repeatedly emphasized that

the certificates of analysis in that case were prepared solely

for use at the defendant’s trial. See id.; see also id. at 2539

(the certificates’ “sole purpose” was “providing evidence

against a defendant”); id. at 2540 (the certificates were “prepared specifically for use at petitioner’s trial”). Unlike the certificates of analysis in Melendez-Diaz, neither a warrant of

removal’s sole purpose nor even its primary purpose is use at

trial. A warrant of removal must be prepared in every case

resulting in a final order of removal, see 8 C.F.R. § 241.2; see

also 241.3, and nothing in the record or judicially noticeable

suggests that more than a small fraction of these warrants ultimately are used in immigration prosecutions.5 Accord United

States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008) (“The

[warrant of removal’s] primary purpose is to memorialize the

deportation, not to prove facts in a potential future criminal

prosecution.”); United States v. Torres-Villalobos, 487 F.3d

607, 613 (8th Cir. 2007) (“Warrants of deportation are produced under circumstances objectively indicating that their

primary purpose is to maintain records concerning the movements of aliens and to ensure compliance with orders of

deportation, not to prove facts for use in future criminal prosecutions.”). Melendez-Diaz cannot be read to establish that the

mere possibility that a warrant of removal—or, for that matter, any business or public record—could be used in a later

criminal prosecution renders it testimonial under Crawford.

Accord United States v. Mendez, 514 F.3d 1035, 1046 (10th

Cir. 2008) (“That a piece of evidence may become ‘relevant

5To illustrate, we take judicial notice of the fact that while nearly

281,000 aliens were removed from the United States pursuant to final

orders of removal in 2006, see U.S. Dep’t of Homeland Sec., Office of

Immigration Statistics, Yearbook of Immigration Statistics 95 (2008),

available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/

ois_yb_2008.pdf, just over 17,000 federal prosecutions for immigration

offenses were commenced during approximately the same time period, see

U.S. Dep’t of Justice, Bureau of Justice Statistics, Federal Judicial Statistics tbl. 4.1 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/html/

fjsst/2006/fjs06st.pdf. 

8346 UNITED STATES v. OROZCO-ACOSTA
to later criminal prosecution’ does not automatically place it

within the ambit of ‘testimonial.’ . . . [Otherwise,] any piece

of evidence which aids the prosecution would be testimonial

and subject to Confrontation Clause scrutiny.”). We accordingly reject Orozco-Acosta’s argument that Melendez-Diaz

renders warrants of removal testimonial.

[7] In sum, nothing in Melendez-Diaz is clearly irreconcilable with Bahena-Cardenas’s holding that a warrant of

removal is “nontestimonial because it was not made in anticipation of litigation.” 411 F.3d at 1075. We therefore are not

at liberty to depart from that holding. We conclude that

admission of the warrant of removal into evidence at OrozcoAcosta’s trial did not violate the Sixth Amendment.

II. Jury Instructions

[8] Orozco-Acosta argues that the district court erred in

refusing to give his proposed circumstantial evidence instruction, thus preventing him from adequately presenting his

defense theory that he lacked knowledge that he was in the

United States. The district court’s formulation of jury instructions is reviewed for abuse of discretion. United States v.

Frega, 179 F.3d 793, 807 n.16 (9th Cir. 1999). “In reviewing

jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the

jury’s deliberation. The trial court has substantial latitude so

long as its instructions fairly and adequately cover the issues

presented.” Id. (internal citation omitted). We review de novo

whether the jury instructions adequately presented the defendant’s theory of the case. United States v. Somsamouth, 352

F.3d 1271, 1274 (9th Cir. 2003). 

Orozco-Acosta’s requested instruction was nearly identical

to California standard criminal jury instruction (“CALJIC”)

2.01, concerning circumstantial evidence.6 Orozco-Acosta

6Orozco-Acosta’s requested instruction read: 

A finding of guilt as to any crime may not be based on circumUNITED STATES v. OROZCO-ACOSTA 8347
claims that this instruction was necessary to the jury’s consideration of his defense theory that he lacked knowledge that he

was in the United States. Specifically, he argues that the element of knowledge necessarily would be proven by circumstantial evidence and that the district court’s refusal to read

his proposed instruction prejudiced him because no other

instruction described the manner in which the jurors were to

evaluate circumstantial evidence. 

[9] We previously rejected a similar argument under similar circumstances. In United States v. James, 576 F.2d 223

(9th Cir. 1978), the defendant requested a jury instruction that

was virtually identical to that requested by Orozco-Acosta,

claiming that “his entire defense was dependent upon the

jury’s understanding of the nature and the significance of circumstantial evidence.” Id. at 226. We explained that “neither

party, including a criminal defendant, may insist upon any

particular language” and found no abuse of discretion in the

stantial evidence unless the proved circumstances are not only (1)

consistent with the theory that the defendant is guilty of the

crime, but (2) cannot be reconciled with any other rational conclusion. 

Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be

proved beyond a reasonable doubt. In other words, before an

inference essential to establish guilt may be found to have been

proved beyond a reasonable doubt, each fact or circumstance on

which the inference necessarily rests must be proved beyond a

reasonable doubt. 

Also, if the circumstantial evidence as to any particular count

permits two reasonable interpretations, one of which points to the

defendant’s guilt and the other to his innocence, you must adopt

that interpretation that points to the defendant’s innocence, and

reject that interpretation that points to his guilt. 

If, on the other hand, one interpretation of this evidence

appears to you to be reasonable and the other interpretation to be

unreasonable, you must accept the reasonable interpretation and

reject the unreasonable. 

8348 UNITED STATES v. OROZCO-ACOSTA
district court’s refusal to give the requested instruction

because the jury instructions as a whole were adequate. Id. at

226-27. 

[10] The instructions in this case, as a whole, also were

adequate to guide the jury’s deliberation. As in James, the district court in this case “instructed the jury on the meaning and

significance of direct and circumstantial evidence.”

7

Id. at

227; see also id. at 227 n.2. The district court’s instruction on

the reasonable doubt standard was sufficient to ensure that the

jurors understood “their duty in the event they concluded that

the evidence reasonably permitted a finding of either guilt or

innocence.”

8

Id. at 227; see also United States v. Miller, 688

7The district court in this case instructed the jury: 

Remember, also, evidence can [be] direct or circumstantial. 

Direct evidence directly proves a fact such as testimony by an

eyewitness about what the witness saw or heard or did. Circumstantial evidence, in contrast, is indirect evidence. It’s proof of a

fact from which you can find another fact exists. 

Both direct and circumstantial evidence are competent ways of

proving facts. It’s up to you ultimately to decide how much

weight to give either form of evidence. 

8The jury in this case was instructed: 

I’ve told you that the burden on the government is to prove this

case beyond a reasonable doubt. . . . Let me tell you how the law

defines that term. 

Proof beyond a reasonable doubt is proof that leaves you

firmly convinced that the defendant’s guilty. The government’s

not required to prove guilt beyond all possible doubt. Rather, a

reasonable doubt is a doubt based on reason and common sense

and not based purely on speculation or guesswork. Reasonable

doubt may arise from a careful and impartial consideration of all

the evidence or it may arise from a lack of evidence. 

If, after you’ve carefully and impartially considered the evidence in this case, you’re not convinced beyond a reasonable

doubt that the defendant is guilty, then you must find him not

guilty. 

On the other hand, if, after you’ve weighed and considered

everything carefully, you find yourselves convinced beyond a

reasonable doubt that the defendant’s guilt has been shown, then

it is your duty to find him guilty. 

UNITED STATES v. OROZCO-ACOSTA 8349
F.2d 652, 662 (9th Cir. 1982). In light of James, the district

court’s conclusion that the other jury instructions adequately

covered the substance of Orozco-Acosta’s proposed instruction was not an abuse of discretion. In addition, the district

court read Orozco-Acosta’s requested defense theory instruction,9

 ensuring that the jury instructions as a whole adequately

presented his theory of the case. There was no instructional

error.

III. Sentence

Orozco-Acosta’s final challenge is to his sentence. In

reviewing a sentence, we first consider whether the district

court committed significant procedural error. United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). In determining whether the district court committed procedural error,

we review, inter alia, the district court’s interpretations of the

federal Sentencing Guidelines. See United States v. Bendtzen,

542 F.3d 722, 724-25 (9th Cir. 2008). If no procedural error

is found, we then review the sentence for substantive reasonableness under the abuse of discretion standard. United States

v. Ressam, 593 F.3d 1095, 1120-22 (9th Cir. 2010). 

[11] We find no procedural error in this case. Because

Orozco-Acosta was convicted of violating 8 U.S.C. § 1326,

he properly was given a base offense level of eight. U.S. Sentencing Guidelines Manual § 2L1.2 (2008). The Guidelines

also provide for a sixteen-level upward adjustment “[i]f the

defendant previously was deported . . . after . . . a crime of

violence.” Id. § 2L1.2(b)(1)(A)(ii). Orozco-Acosta was

9The jury was instructed: 

Mr. Orozco’s theory of defense in this case is that he did not

know he was in the United States on June 25th, 2008. I remind

you that unless the government establishes beyond a reasonable

doubt either that he knew he was entering the United States or he

realized he was in the United States and then knowingly

remained here, you must find him not guilty. 

8350 UNITED STATES v. OROZCO-ACOSTA
deported after being convicted of California Penal Code section 288(a), which criminalizes lewd and lascivious acts upon

a child under the age of fourteen. See Cal. Penal Code

§ 288(a). In United States v. Medina-Villa, 567 F.3d 507 (9th

Cir. 2009), cert. denied, 130 S. Ct. 1545 (2010) (mem.), we

recently reaffirmed that section 288(a) is a “crime of violence” for purposes of § 2L1.2(b)(1)(A)(ii). Id. at 516; see

also United States v. Medina-Maella, 351 F.3d 944, 947 (9th

Cir. 2003). Accordingly, Orozco-Acosta’s claim that the district court erred by applying the sixteen-level crime-ofviolence enhancement is foreclosed by our precedent.10

[12] We also conclude that Orozco-Acosta’s sentence was

substantively reasonable. The district court imposed a sentence in the middle of the Guidelines range after carefully and

rationally considering the factors in 18 U.S.C. § 3553(a). The

district court emphasized the need to protect the public in

light of the seriousness of Orozco-Acosta’s prior section

288(a) conviction. In determining whether Orozco-Acosta

posed a continuing threat to the public, the district court was

entitled to make reasonable inferences about the import of the

women’s underwear found in Orozco-Acosta’s pocket and his

incredible explanation for its presence. The district also cited

the fact that Orozco-Acosta previously had been deported

from the United States ten times, and that Orozco-Acosta’s

advanced age had not stopped him from illegally entering the

United States in the present offense. In light of these considerations, the district court’s Guidelines-range sentence was not

an abuse of discretion.

Orozco-Acosta’s reliance on United States v. AmezcuaVasquez, 567 F.3d 1050 (9th Cir. 2009), also is unavailing. In

Amezcua-Vasquez, we held that application of the

§ 2L1.2(b)(1)(A)(ii) crime-of-violence enhancement was substantively unreasonable in light of the staleness of the defen10We have considered Orozco-Acosta’s arguments that we may depart

from Medina-Villa’s holding, and we find them meritless. 

UNITED STATES v. OROZCO-ACOSTA 8351
dant’s prior conviction. Id. at 1055. Although OrozcoAcosta’s section 288(a) conviction was similarly aged,

Amezcua-Vasquez “[made] no pronouncement as to the reasonableness of a comparable sentence were . . . ‘the need . . .

to protect the public from further crimes of the defendant’ . . .

greater,” id. at 1058 (quoting 18 U.S.C. § 3553(a)(2)(c)), or

the case presented “other aggravating sentencing considerations,” such as the need for adequate deterrence, id. at 1057.

In light of the district court’s findings that Orozco-Acosta’s

sentence was necessary to protect the public and to deter him

from subsequent re-entry, Amezcua-Vasquez is not controlling, and we hold that Orozco-Acosta’s sentence was substantively reasonable.

CONCLUSION

Orozco-Acosta’s conviction and sentence are

AFFIRMED.

8352 UNITED STATES v. OROZCO-ACOSTA