United States of America v. F.m.s-R, Juvenile Male

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
F.M.S-R, JUVENILE MALE,
Defendant-Appellant.
No. 16-10049
D.C. No.
4:15-cr-01794-JGZ-BPV-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted August 10, 2017**
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and GILLIAM,*** District
Judge.
Defendant F.M.S-R (“S-R”) is a Mexican juvenile whom U.S. Border Patrol
agents apprehended after he crossed the Mexico-Arizona border with three adult
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Haywood S. Gilliam, Jr., United States District Judge
for the Northern District of California, sitting by designation.
FILED
SEP 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Mexican men. S-R admitted to being the group’s guide and each of the men
identified him as such. S-R was convicted of bringing illegal aliens into the United
States in violation of 8 U.S.C. § 1324(a)(2)(A). S-R appealed. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
1. S-R argues that the district court erred in convicting him of the lesser-
included offense of bringing aliens into the country because the government only
charged him with the greater offense, which includes an additional for-profit
element, and S-R did not request consideration of the lesser offense. Because S-R
did not object at trial, we review his newly raised argument for plain error. See
United States v. Barajas-Montiel, 185 F.3d 947, 953 (9th Cir. 1999). The lesser
offense of bringing aliens into the United States is necessarily included in the
greater offense of bringing illegal aliens into the United States for profit because
the lesser offense’s elements are a subset of the greater offense’s elements. See
Fed. R. Crim. P. 31(c); see also United States v. Arnt, 474 F.3d 1159, 1163 (9th
Cir. 2007). S-R was therefore on notice that the district court could convict him of
either offense. See United States v. Stolarz, 550 F.2d 488, 492 (9th Cir. 1977).
Accordingly, the district court did not err in convicting S-R of the lesser-included
offense.
2. S-R further argues that the district court erred in denying his motion for
acquittal under Federal Rule of Criminal Procedure 29. We review the district

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court’s denial of S-R’s motion for acquittal de novo. United States v. Sanchez, 639
F.3d 1201, 1203 (9th Cir. 2011). At the time of S-R’s motion for acquittal, the
district court had to determine whether, viewing the evidence in the light most
favorable to the prosecution, “any rational trier of fact could [find] the essential
elements of the crime beyond a reasonable doubt.” United States v. Leos-
Maldonado, 302 F.3d 1061, 1063 (9th Cir. 2002). Viewed in the light most
favorable to the prosecution, there was sufficient evidence presented at trial to
survive a motion for acquittal. See id. That S-R was later convicted only of the
lesser offense, because the court found the for-profit element was not met beyond a
reasonable doubt, does not change this result.
3. S-R contends that the government violated the Juvenile Delinquency Act
(“JDA”) protections set forth in 18 U.S.C. § 5033 by failing to make reasonable
efforts to contact his parents. We review for clear error the district court’s
determination that the agents’ efforts were reasonable. See United States v. C.M.,
485 F.3d 492, 498 (9th Cir. 2007). S-R further argues, for the first time on appeal,
that the government violated the JDA by failing to notify S-R and the consular of
S-R’s JDA protections, and by failing to present S-R to the magistrate judge
“forthwith.” Because S-R did not raise these violations before the district court,
we review for plain error. See United States v. Doe, 366 F.3d 1069, 1077 (9th Cir.
2004).

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First, although S-R argued before the district court that the agents did not
make reasonable efforts to contact his parents, he did not raise the particular
argument that he advances now: that the police should have asked the consular to
contact Mexican police officers to locate S-R’s mother. We decline to review this
issue because S-R raises it for the first time on appeal, and its resolution turns on
undeveloped facts. See United States v. Juvenile (RRA-A), 229 F.3d 737, 747 (9th
Cir. 2000). Moreover, on its merits, S-R’s claim is not persuasive, as contacting a
consular is an adequate alternative to notifying a juvenile’s parents. United States
v. D.L., 453 F.3d 1115, 1122 (9th Cir. 2006). Because the agents were not required
to do anything more, we affirm the district court’s determination that the agents
made reasonable efforts to contact S-R’s parents.
Second, S-R acknowledges that the Ninth Circuit only requires notification
of a juvenile’s Miranda rights, rather than notification of his Miranda rights plus
JDA protections. See United States v. Doe, 170 F.3d 1162, 1167 (9th Cir. 1999).
S-R has not demonstrated that expansion of this rule is warranted, nor that hearing
only his Miranda rights prejudiced him. Accordingly, we reject S-R’s contention
that the government’s failure to notify him and the consular of his JDA protections
violated the JDA.
Third, we will not review S-R’s claim that there was an unreasonable delay
in his arraignment because his trial counsel affirmatively waived this argument.

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See United States v. Olano, 507 U.S. 725, 733 (1993). Even if not waived, we
decline to review newly-raised issues of delayed arraignment that turn on facts not
developed in the record. Juvenile (RRA-A), 229 F.3d at 747. Furthermore, as S-R
was presented to the magistrate eighteen hours after his arrest, it is not plain that
this delay was unreasonable, and S-R does not identify any prejudice arising from
this delay. Cf. D.L., 453 F.3d at 1125.
AFFIRMED.

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