FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50171 Plaintiff-Appellee, D.C. Nos. v. 3:14-cr-01225-LAB-1 3:16-cr-00132-LAB-1 PEDRO HERNANDEZ- QUINTANIA, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted August 29, 2017 Pasadena, California Filed November 3, 2017 Before: William A. Fletcher and Sandra S. Ikuta, Circuit Judges, and Nancy Freudenthal, * Chief District Judge. Opinion by Judge Freudenthal * The Honorable Nancy Freudenthal, Chief United States District Judge for the District of Wyoming, sitting by designation. 2 UNITED STATES V. HERNANDEZ-QUINTANIA SUMMARY ** Criminal Law The panel affirmed (1) a conviction under 18 U.S.C. § 1326 for reentry by a previously-deported alien without the express consent of the Attorney General to reapply for admission, and (2) the resulting revocation of the defendant’s supervised release from a prior illegal reentry conviction. The panel rejected the defendant’s contention that the government failed to prove he did not obtain the Attorney General’s consent to reapply for admission to entering the United States. The panel held that § 1326 requires a deported alien to receive the Attorney General’s consent to reapply for admission after his or her most recent deportation, regardless of whether he or she had prior permission to reapply, and that the evidence was sufficient for the jury to find that the defendant was in the United States without such consent. The panel held that the district court properly denied the defendant’s Batson challenge asserting that the government struck two jurors based on their ethnicity. The panel held that the totality of the circumstances does not raise an inference that the government’s challenges were racially motivated, that the defendant failed to make a prima facie case of discrimination, and that the district court’s comments ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. HERNANDEZ-QUINTANIA 3 regarding the possible reasons for striking the jurors did not constitute structural error. COUNSEL Doug Keller (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. Colin M. McDonald (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Alana W. Robinson, Acting United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee. OPINION FREUDENTHAL, Chief District Judge: Hernandez-Quintania appeals from a jury conviction under 8 U.S.C. § 1326, which makes it a felony for an alien who has previously been deported to reenter the United States without the express consent of the Attorney General to reapply for admission. As a result of the conviction, the district court also found Hernandez-Quintania violated the terms of his supervised release from a prior 2014 illegal reentry conviction. We find there was substantial evidence to support Hernandez-Quintania’s conviction and that the district court properly denied Hernandez-Quintania’s Batson challenge. We therefore affirm Hernandez-Quintania’s conviction and supervised release revocation. 4 UNITED STATES V. HERNANDEZ-QUINTANIA ...
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