Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

MEMORANDUM^** 

Enrique Gonzales-Munoz appeals his convictions, following a bench trial, for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326, and for failure to appear at his trial, in violation of 18 U.S.C. § 3146.¹  Gonzales-Munoz contends (1) that the district court erred in denying his motion for severance, (2) that there was insufficient evidence to support the verdict, and (3) that the sentence was excessive.

* Severance

Gonzales-Munoz contends that the district court abused its discretion in denying his motion to sever. Appellant's Brief at 7. This contention is meritless.

This court reviews for an abuse of discretion the denial of a properly preserved motion to sever. United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986).

A motion to sever must be renewed at the close of the evidence or it is waived. Burgess, 791 F.2d at 678. Gonzales-Munoz made a pretrial motion to sever trial on the alien charge from the trial on the charge of failure to appear. However, Gonzales-Munoz did not renew his motion to sever at the close of evidence. Therefore, the issue was not preserved on appeal and this court need not review it. See Burgess, 791 F.2d at 678.

II

Sufficiency of the Evidence

Gonzales-Munoz contends that the evidence was insufficient to support the guilty verdict. Appellant's Brief at 8. This contention is meritless.

There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984); United States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980) (same test applied to both jury and bench trials).

Gonzales-Munoz was charged with violating 8 U.S.C. § 1326 (alien in United States after deportation) and 18 U.S.C. § 3146 (failure to appear). Section 1326 is violated when an alien "has been arrested and deported or excluded and deported, and thereafter ... enters ... or is at any time found in, the United States, unless (A) prior to his reembarkation ... the Attorney General has expressly consented to such aliens reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior act...." Section 3146 is violated when an individual "having been released under this chapter knowingly ... fails to appear before a court as required by the conditions of release...."

As to the charge for being an alien in the United States after being deported, the uncontroverted evidence showed that Gonzales-Munoz was a Mexican citizen, that he had been deported in 1974, that he had not been given permission to reenter, and that he was later found in the United States. Therefore, there was sufficient evidence to support the verdict as to this charge. See Marabelles, 724 F.2d at 1377.

As to the charge of failing to appear, the uncontroverted evidence showed that Gonzales-Munoz was released until his trial date, knew that he was to appear, and failed to appear. Therefore, there was sufficient evidence to support the verdict as to this charge as well. Id.

III

Sentence

Gonzales-Munoz contends that the sentence was excessive. Appellant's Brief at 9. This contention is also meritless.

The sentence imposed is left to the sound discretion of the district court and reviewed for abuse of that discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). A sentence within statutory limits is generally not reviewed absent constitutional concerns. Id. at 834.

A person convicted for being an alien in the United States after deportation can be punished by up to two years' imprisonment and a $1,000 fine or both. See 8 U.S.C. § 1326. A person convicted for failure to appear can be punished by up to two years' imprisonment and a fine. See 18 U.S.C. § 3146.

The district court sentenced Gonzales-Munoz to two years on each charge, to run concurrently,²  and therefore did not exceed the maximum sentence. Gonzales-Munoz fails to specifically allege why the district court abused its discretion in sentencing him other than conclusorily alleging that the sentence was excessive. However, based on the record before it, the district court did not abuse its discretion in sentencing Gonzales-Munoz to the maximum statutory term. See Messer, 785 F.2d at 834.

AFFIRMED.