United States of America v. Roberto Lopez-Villegas

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO LOPEZ-VILLEGAS,
Defendant - Appellant.
No. 09-50429
D.C. No. 3:09-cr-01390-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 February 9, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Roberto Lopez-Villegas (“Lopez”) appeals his conviction for being found in the
United States after a previous removal, in violation of 8 U.S.C. §§ 1326(a) and (b).
We affirm.
FILED
FEB 16 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
Lopez argues that his statements to immigration officials were the result of
custodial interrogation, and he was not warned prior to their elicitation consistent with
the mandates of Miranda v. Arizona, 384 U.S. 436 (1966). The government concedes
that Lopez was in custody, so only the issue of interrogation is before us.
“Not every question asked in a custodial setting constitutes ‘interrogation.’”
United States v. Mata-Abundiz, 717 F.2d 1277, 1278 (9th Cir. 1983). Rather,
“custodial questioning constitutes interrogation whenever, under all the circumstances
involved in a given case, the questions are reasonably likely to elicit an incriminating
response from the suspect.” United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.
1981) (internal quotations omitted).
But Lopez’s questioning occurred as part of a routine administrative interview
conducted to determine whether any legitimate claim for relief from removal existed.
Lopez was removed almost immediately following the interview. Also, DHS had
already decided it would not prosecute Lopez by the time the interview occurred, and
Lopez was not prosecuted under § 1326 until his later illegal reentry into the United
States subjected him to prosecution. Under these circumstances, the district court did
not err in finding that Lopez’s statements admitting alienage were not likely to elicit
an incriminating response. United States v. Salgado, 292 F.3d 1169, 1174 (9th Cir.
2002).

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3
Any error in admitting a Certificate of Nonexistence of Record to prove lack
of consent to reentry was harmless because the A-file custodian testified that Lopez
never applied for, or received, legal permission to re-enter the United States after his
prior removal, and he had a full and fair opportunity to cross-examine her. United
States v. Orozco-Acosta, 607 F.3d 1156, 1162 (9th Cir. 2010), cert. denied, 2011 U.S.
LEXIS 172 (Jan. 10, 2011). At trial, Lopez explicitly waived any argument
challenging the scope of the records searches with respect to aliases and alternate
dates of birth, so he is barred from making them here. Tritchler v. County of Lake,
358 F.3d 1150, 1153 (9th Cir. 2004).
AFFIRMED.

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