United States of America v. Jose Cano-Medina

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. Rule 36-3.
The Honorable Michael Patrick McCuskey, Chief District Judge for**
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE CANO-MEDINA,
Defendant - Appellant.
No. 10-50406
D.C. No. 3:09-cr-04150-JM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted September 2, 2011
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
District Judge.**
Appellant Jose Cano-Medina appeals from his conviction, following a jury
trial, of attempted entry after deportation in violation of 8 U.S.C. § 1326(a) and (b).
FILED
OCT 13 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We have jurisdiction under 28 U.S.C. §§ 1291, 1294(1), and we affirm the district
court's judgment.
Cano-Medina argues that the district court erred by refusing to instruct the
jury regarding the difference between the burdens of proof in immigration and
criminal proceedings, contending that the instruction was necessary because it was
a correct statement of the law and was supported by the evidence at trial. The
district court declined to give the instruction proposed by Cano-Medina, finding
that it was not necessary or appropriate under the circumstances of this case. The
district court did not err. The record shows that the district court, as well as
counsel for both sides, properly explained the burden of proof for a criminal trial.
See United States v. Marin-Cuevas, 147 F.3d 889, 893–94 (9th Cir. 1998) (finding
that the jury was properly instructed even though the judge did not give an
instruction which compared and contrasted the burden of proof in criminal trials
with that in immigration proceedings).
Cano-Medina also argues that the district court gave a defective jury
instruction on reasonable doubt. The test is whether, taken as a whole, the
instructions correctly convey the concept of reasonable doubt to the jury. Victor v.
Nebraska, 511 U.S. 1, 5 (1994). The district court properly instructed the jury
using the Ninth Circuit model jury instruction. See id. at 17–21 (rejecting
challenges to instructions which included similar language).

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Finally, as Cano-Medina recognized, his argument regarding the admission
into evidence of the warrant of removal is foreclosed by United States v. Orozco-
Acosta, 607 F.3d 1156, 1163–64 (9th Cir. 2010) (holding that the admission of the
warrant of removal into evidence did not violate the Sixth Amendment).
AFFIRMED.

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