United States v. Cantu-Lopez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-2190 D.C. No. Plaintiff - Appellee, 1:22-cr-02041-SAB-2 v. MEMORANDUM* PAULA EULOJIA CANTU-LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding Submitted August 13, 2025** Anchorage, Alaska Before: GRABER, OWENS, and R. NELSON, Circuit Judges. A jury convicted Paula Cantu-Lopez of carjacking, brandishing a firearm during and in relation to a crime of violence, and assault resulting in serious bodily injury in Indian country. We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  1. First, Cantu-Lopez argues that the United States failed to present evidence of her non-Indian status and that the jury was not instructed to find whether she is Indian. See 18 U.S.C. § 1152. Because she did not raise this objection below, we review for plain error. United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020). No reversible error occurred. The government was not obligated to prove affirmatively that Cantu-Lopez was not Indian because she did not assert non-Indian status as an affirmative defense. United States v. Bruce, 394 F.3d 1215, 1222–23 (9th Cir. 2005); United States v. Hester, 719 F.2d 1041, 1043 (9th Cir. 1983).1 2. Second, Cantu-Lopez argues that no reasonable juror could have found that the carjacked vehicle travelled in interstate commerce. See 18 U.S.C. § 2119. We review for plain error. See United States v. Lopez, 4 F.4th 706, 719 (9th Cir. 2021) (“We review forfeited challenges to the sufficiency of the evidence for plain error.”). Evidence of a single interstate crossing, including evidence that a car was manufactured out of a state and shipped into it, satisfies the interstate nexus requirement for carjacking. United States v. Newton, 65 F.3d 810, 811 (9th Cir. 1995) (per curiam). The jury could have reasonably inferred that the car was manufactured outside of the state of Washington, satisfying the interstate nexus 1 We have no authority to discard our precedent characterizing non-Indian status as an affirmative defense. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc). 2 24-2190 requirement. 3. Third, Cantu-Lopez argues that the aiding-and-abetting instruction constructively amended her indictment. We review for plain error. United States v. Peterson, 538 F.3d 1064, 1070–71 (9th Cir. 2008). The instruction passes muster because it tracked the relevant statutory text and did not omit any required element. See United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir. 1990) (stating standard). And it was similar to jury instructions considered error-free by this court. United States v. Ubaldo, 859 F.3d 690, 698–99, 706 (9th Cir. 2017). AFFIRMED. 3 24-2190