United States of America, Plaintiff-appellee, v. Jose Heriberto Rios-gonzalez, Defendant-appellant, 42 F.3d 1404 (9th Cir. 1994)

MEMORANDUM^** 

Jose Heriberto Rios-Gonzalez appeals his conviction following a jury trial for being found in the United States after a prior deportation and following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a), (b) (2). Rios-Gonzalez contends that the government presented insufficient evidence to prove that he was an alien. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

In evaluating the sufficiency of the evidence, we ordinarily review the evidence in the light most favorable to the prosecution to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See United States v. Marashi, 913 F.2d 724, 735 (9th Cir. 1990). Because Rios-Gonzalez did not move in the district court for a judgment of acquittal under Fed. R. Crim. P. 29(a), we review for plain error affecting substantial rights. United States v. Ortiz-Lopez, 24 F.3d 53, 55 (9th Cir. 1994); see United States v. Olano, 113 S. Ct. 1770, 1779 (1993).

In order to convict a defendant under 28 U.S.C. § 1326, the government must prove beyond a reasonable doubt that the defendant is an alien. See Ortiz-Lopez, 24 F.3d at 55. Because the burden of proof in deportation proceedings is by clear and convincing evidence, proof that the defendant was previously deported is insufficient to show that the defendant is an alien. S ee id. at 55-56.

The evidence was sufficient to support Rios-Gonzalez's conviction. The government presented documentary evidence, unrelated to the factual findings in Rios-Gonzalez's previous deportation hearing, showing that Rios-Gonzalez was born in Mexico. Moreover, an Immigration and Naturalization Service agent testified that he maintains files on aliens and has such a file for Rios-Gonzalez. Thus, a rational jury could find that Rios-Gonzalez is an alien. See Marashi, 913 F.2d at 735; cf. Ortiz-Lopez 24 F.3d at 56.

AFFIRMED.