United States v. Cadena-Romo

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 22, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-51439
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS CADENA-ROMO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-03-CR-145-1-AML
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Luis Cadena-Romo (Cadena) appeals his conviction by a
jury of illegal reentry by an alien following deportation, in
violation of 8 U.S.C. § 1326. Cadena argues that the evidence
was insufficient to prove that he is an alien. He contends that
he has derivative citizenship through his mother who was a United
States citizen.
Because Cadena failed to renew his motion for a judgment of
acquittal at the close of all of the evidence, his sufficiency
challenge is reviewed only for a manifest miscarriage of justice.

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No. 03-51439
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United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). Such
a miscarriage of justice occurs when the record is “devoid of
evidence of guilt or [when] the evidence [is] so tenuous that a
conviction is shocking.” Id.
The Government introduced evidence that Cadena was born in
Mexico, that he informed a Border Patrol agent at the time of his
apprehension that he was a Mexican national, that he had
previously filed for an Immigrant Visa, that he had been deported
as an alien, and that he waived his right to appeal the
deportation order. The only evidence of Cadena’s derivative
citizenship came from Cadena’s testimony, which was inconsistent.
This inconsistency provided support for a jury-finding that
Cadena was not entitled to derivative citizenship. The jury was
free to reject Cadena’s testimony regarding his claim to
citizenship. See United States v. Runyan, 290 F.3d 223, 240 (5th
Cir. 2002).
The record is not devoid of evidence that Cadena is an
alien. Cadena’s conviction under § 1326 does not constitute a
manifest miscarriage of justice. See Avants, 367 F.3d at 449.
Accordingly, the judgment of the district court is AFFIRMED.

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