641 Fed.Appx. 691 (9th Cir. 2016), 14-10219, United States v. Soto-Mendoza

Docket Nº:14-10219, 14-10220
Citation:641 Fed.Appx. 691
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCOS SOTO-MENDOZA, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCOS SOTO-MENDOZA, AKA Marco Soto-Mendoza, AKA Vicente Soto-Mendoza, Defendant - Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee (14-10219): Bruce M. Ferg, Assistant U.S. Attorney, USTU- Office of the U.S. Attorney, Tucson, AZ. For MARCOS SOTO-MENDOZA, Defendant - Appellant (14-10219): Francisco Leon, Esquire, Attorney, Law Office of Francisco Leon, Tucson, AZ; Randolfo V....
Judge Panel:Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges. SILVERMAN, Circuit Judge, dissenting in part. SILVERMAN, Circuit Judge, dissenting in part:
Case Date:February 25, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 691

641 Fed.Appx. 691 (9th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARCOS SOTO-MENDOZA, Defendant - Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARCOS SOTO-MENDOZA, AKA Marco Soto-Mendoza, AKA Vicente Soto-Mendoza, Defendant - Appellant

Nos. 14-10219, 14-10220

United States Court of Appeals, Ninth Circuit

February 25, 2016

Argued and Submitted October 20, 2015 San Francisco, California

Page 692

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the District of Arizona. D.C. No. 4:11-cr-02628-CKJ-BPV-1, D.C. No. 2:10-cr-01277-CKJ-BPV-1.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (14-10219): Bruce M. Ferg, Assistant U.S. Attorney, USTU- Office of the U.S. Attorney, Tucson, AZ.

For MARCOS SOTO-MENDOZA, Defendant - Appellant (14-10219): Francisco Leon, Esquire, Attorney, Law Office of Francisco Leon, Tucson, AZ; Randolfo V. Lopez, Attorney, Randolfo V. Lopez, P.C., Tucson, AZ.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (14-10220): Bruce M. Ferg, Assistant U.S. Attorney, USTU- Office of the U.S. Attorney, Tucson, AZ.

For MARCOS SOTO-MENDOZA, AKA Marco Soto-Mendoza, AKA Vicente Soto-Mendoza, Defendant - Appellant (14-10220): Francisco Leon, Esquire, Attorney, Law Office of Francisco Leon, Tucson, AZ; Randolfo V. Lopez, Attorney, Randolfo V. Lopez, P.C., Tucson, AZ.

Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges. SILVERMAN, Circuit Judge, dissenting in part.

Page 693

MEMORANDUM[*]

After a jury trial, the district court entered judgment and sentenced Marcos Soto-Mendoza on five counts of bringing illegal aliens into the United States for profit. Soto-Mendoza appeals from his judgment of conviction, raising several different claims. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court did not err in refusing to order a new trial. On Count I, the jury responded to a special interrogatory by finding the government had not proven beyond a reasonable doubt that Soto-Mendoza acted for financial gain or commercial advantage. Even assuming there was an inconsistency between this finding on Count I and the jury's convictions on Counts II-VI, a defendant cannot attack a conviction based on an inconsistent acquittal on another count. See, e.g., United States v. Powell, 469 U.S. 57, 60, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).

As to Counts II-VI, the trial evidence was sufficient to establish that Soto-

Page 694

Mendoza acted for financial gain or commercial advantage. The evidence showed the aliens arranged to pay a third-party for their passage, this third-party supplied Soto-Mendoza as their guide, and Soto-Mendoza referred to guiding the aliens as " his job." We have repeatedly upheld convictions for the same offense on similar evidence.

See, e.g., United States v. Schemenauer, 394 F.3d 746, 751 (9th Cir. 2005); United States v...

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