United States of America v. Marco Hoyos-Grijalva

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCO HOYOS-GRIJALVA,
Defendant - Appellant.
No. 12-10062
D.C. No. 4:10-cr-02433-DCB-
GEE-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted March 12, 2013**
San Francisco, California
Before: WALLACE, McKEOWN, and IKUTA, Circuit Judges.
Hoyos-Grijalva was convicted by a jury for Attempted Illegal Re-Entry after
Deportation in violation of 8 U.S.C. § 1326(a). He appeals from the district court’s
judgment, challenging (1) the denial of his motion for judgment of acquittal and
FILED
MAR 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(2) the jury’s verdict based on sufficiency of the evidence. We review by asking
whether, construing the evidence in the light most favorable to the government,
any rational trier of fact could have found the elements of the crime beyond a
reasonable doubt. See United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th
Cir. 2002). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The crime of attempted illegal reentry requires, among other things, (1) a
specific intent, or “conscious desire,” to reenter the United States without consent
and (2) an overt act. United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th
Cir. 2000) (en banc).
The government presented sufficient evidence for a rational juror to find the
requisite specific intent beyond a reasonable doubt. Based on the evidence, a
rational juror could have rejected the theory that Hoyos-Grijalva presented himself
at the border with an innocent, rather than criminal, purpose. See Id. at 1193.
Moreover, we reject Hoyos-Grijalva’s argument that he could not have had
the specific intent to enter the United States because he was under official restraint
at the border. Although Hoyos-Grijalva may have been under official restraint at
the port of entry, a rational trier of fact could conclude that his conscious desire
was to “change that status” by proceeding to Seattle to live and work. See United
States v. Lombera-Valdovinos, 429 F.3d 927, 930 (9th Cir. 2005).

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A rational trier of fact could conclude that Hoyos-Grijalva engaged in an
overt act because his presentation at the border was an “effort” to reenter the
United States. See Leos-Maldonado, 302 F.3d at 1064.
Accordingly, the evidence was sufficient to support the conviction and the
district court did not err in denying the motion for acquittal.
AFFIRMED.

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