United States of America v. DIONICIO REYES-PEREZ, AKA Dionicio Perez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIONICIO REYES-PEREZ, AKA
Dionicio Perez,
Defendant - Appellant.
No. 11-10205
D.C. No. 4:09-cr-01423-RCC-
HCE-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted April 19, 2012
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
Dionicio Reyes-Perez appeals his jury conviction and sentence for illegal
reentry after deportation in violation of 8 U.S.C. § 1326.
FILED
MAY 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Reyes-Perez argues that statements he made at the time of his arrest and
during a motions hearing should have been suppressed. Even assuming error, there
was no prejudice. The uncontroverted evidence showed that Reyes-Perez was
found on the roof of a warehouse just across the United States-Mexico border, that
he had previously been deported to his country of origin, Mexico, and that he had
expressly abandoned any claims for relief from deportation. The denial of the
suppression motion did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Ghent v. Woodford, 279 F.3d 1121, 1127 (9th Cir.
2002) (internal quotation marks omitted). Because any error was harmless, the
conviction must be affirmed.
At sentencing, the court denied a sentencing reduction for acceptance of
responsibility and, in doing so, relied at least to some extent on the ground that
Reyes-Perez had put the government to its burden of proof. This was error. See
United States v. Martinez-Martinez, 369 F.3d 1076, 1089 (9th Cir. 2004). For this
reason, the sentence must be reconsidered. The other challenges to the sentence
are without merit.
We AFFIRM the conviction, VACATE the sentence, and REMAND for
the district court to reconsider whether Reyes-Perez should receive a sentencing
reduction for acceptance of responsibility.

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