United States of America, Plaintiff - Appellee, v. Gerardo Campos-oropeza, Defendant - Appellant, 61 F.3d 912 (9th Cir. 1995)

MEMORANDUM^*** 

Gerardo Campos-Oropeza appeals his conviction for illegal reentry by a previously deported aggravated felon, 18 U.S.C. § 1326(b) (1). Campos-Oropeza contends that the district court erred in denying him discovery to support his claim of selective prosecution, and in denying his motion to suppress the fruits of Campos-Oropeza's arrest. We have jurisdiction, 28 U.S.C. § 1291, and we affirm and remand.

* Campos-Oropeza contends that he was forcibly detained in violation of Terry v. Ohio, 392 U.S. 1 (1968), because the government lacked reasonable, articulable suspicion that criminal activity was afoot. He argues that therefore Agent Phelps should have been precluded from testifying to Campos-Oropeza's presence in the United States on March 3, 1994, the date of his arrest. We need not resolve the question of whether Campos-Oropeza was properly detained because the relief Campos-Oropeza seeks is unavailable regardless of the propriety of the Agent Phelps's actions. A defendant's identity cannot be suppressed. United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994).

II

Campos-Oropeza also contends that the district court erred in denying his motion to dismiss and for discovery on the basis of selective prosecution. For the reasons set forth in United States v. Rendon-Abundez, F.3d, No. 94-50352 (9th Cir. July 13, 1995), we remand to the district court for reconsideration of the motion in light of our opinion in United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995) (en banc), and in accord with the instructions in Rendon-Abundez.

AFFIRMED in part and REMANDED in part.