United States of America v. Karina Sevilla

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KARINA SEVILLA,
Defendant - Appellant.
No. 14-50390
D.C. No. 2:14-cr-00072-PA-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 19, 2015**
Pasadena, California
Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.
Karina Sevilla appeals her jury conviction and sentence for illegal alien
found in the United States after deportation in violation of 8 U.S.C. § 1326. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
NOV 02 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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1. The district court did not abuse its discretion in precluding cross
examination regarding the government’s failure to investigate the citizenship of
Sevilla’s father. Sevilla’s proffered cross examination was at most only marginally
relevant to the elements required to establish derivative citizenship, and the
probative value of such evidence was substantially outweighed by the risk of
confusing the issues, misleading the jury, and undue delay. See United States v.
Espinoza-Baza, 647 F.3d 1182, 1189-90 (9th Cir. 2011).
2. Because Sevilla’s derivative citizenship argument lacked the necessary
factual foundation, the district court did not abuse its discretion in refusing to
instruct the jury on Sevilla’s theory of defense. See id. at 1192 (“Without any facts
linking Espinoza-Baza’s evidence with the required elements for derivative
citizenship, an instruction on the defense was not required.”).
3. The district court did not err in responding to the jury’s questions. The
court properly instructed the jury both that the government had the burden to prove
beyond a reasonable doubt that Sevilla was an alien at the time of her entry into the
United States, and also that there were no jury instructions regarding the issue of
Sevilla’s derivative citizenship. See id. (“[T]he jury’s inquiry to the district court
regarding derivative citizenship does not alter our analysis.”). The court also
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properly instructed the jury not to “speculate” about why Sevilla’s birth certificate
was not offered into evidence. See Fed. R. Evid. 103(d).
4. Finally, as Sevilla concedes, her claim regarding the divisibility of Cal.
Health & Safety Code § 11378 is foreclosed by existing precedent. See, e.g.,
Padilla-Martinez v. Holder, 770 F.3d 825, 831 n.3 (9th Cir. 2014).
The judgment of conviction is AFFIRMED. This matter is REMANDED
to the district court with directions to correct the clerical error in the judgment and
probation commitment order (District Court Dkt. No. 117), which incorrectly
checked the box following the “plea” as “guilty,” rather than a “not guilty” plea
and a conviction following a jury trial.
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