United States v. 2020-02-18 | 18-10316 | USA V. CRUZ GAVINO-MARISCAL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRUZ ALONSO GAVINO-MARISCAL,
Defendant-Appellant.
No. 18-10316
D.C. No. 4:17 cr-0750 RCC
MEMORANDUM
*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted February 7, 2020
Arizona State University, Phoenix, Arizona
Before:TASHIMA, HURWITZ, and MILLER, Circuit Judges.
Cruz Alonso Gavino-Mariscal appeals his conviction and sentence for
willfully and knowingly making a false statement in an application for a passport,
in violation of 18 U.S.C. § 1542. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
FILED
FEB 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

1.Reviewing for plain error, see United States v. Leos-Maldonado, 302
F.3d 1061, 1064 (9th Cir. 2002), we reject Gavino-Mariscal’s challenge to the
sufficiency of the indictment. Gavino-Mariscal has not shown that any purported
error affected his substantial rights, because he has not shown that including a
reference to 22 C.F.R. § 51.20(b) in the indictment would have altered his defense
at trial or affected the outcome of the district court proceedings. See id. at
1064–65; United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992).
2.Reviewing for plain error, see United States v. Alferahin, 433 F.3d
1148, 1154 (9th Cir. 2006), we reject Gavino-Mariscal’s challenge to the jury
instructions. Even assuming that there was error, Gavino-Mariscal has not shown
that the error affected his substantial rights.
3.Sufficient evidence supports the jury’s verdict. See Cavazos v. Smith,
565 U.S. 1, 2 (2011) (per curiam) (“A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury.”). Although Gavino-Mariscal possessed a facially valid
California birth certificate, the government presented evidence that the birth
certificate was procured by fraud, that Gavino-Mariscal was born in Mexico, and
that he was aware of his Mexican birth at the time he submitted his passport
application.
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4.The district court adequately explained Gavino-Mariscal’s sentence.
The sentencing laws “do not require that a district court always specifically justify
its choice between concurrent and consecutive sentences.” United States v. Fifield,
432 F.3d 1056, 1066 (9th Cir. 2005). “The district court need not tick off each of
the § 3553(a) factors to show that it has considered them.” United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc). Further, Gavino-Mariscal has not
identified any “specific, nonfrivolous argument tethered to a relevant § 3553(a)
factor” that the district court failed to address. See id. at 992–93.
AFFIRMED.
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