United States v. Rios-Bautista

FILED NOT FOR PUBLICATION SEP 12 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-1507 Plaintiff-Appellee, D.C. No. 3:19-cr-02883-BLM-BTM-1 v. ROBERTO RIOS-BAUTISTA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding Submitted September 10, 2024** Pasadena, California Before: IKUTA and FRIEDLAND, Circuit Judges, and HSU,*** District Judge. * 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). *** The Honorable Wesley L. Hsu, United States District Judge for the Central District of California, sitting by designation.  Roberto Rios-Bautista appeals his conviction for misdemeanor attempted illegal entry by an alien in violation of 8 U.S.C. § 1325(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We need not decide whether the magistrate judge erred in admitting evidence of Rios-Bautista’s prior apprehension and removal, because even if there were an error, it would be harmless. As the magistrate judge concluded, “there was overwhelming evidence against the defendant.” A border patrol agent testified that he located Rios-Bautista in a sparsely populated area approximately 20 miles away from the closest port of entry, and approximately one mile away from a gap in the 20-foot tall fence that runs across the U.S.-Mexico border. Rios-Bautista admitted that he was not a U.S. citizen and that he had illegally crossed the border. Therefore, in light of the circumstances of Rios-Bautista’s July 3 arrest, “it is more probable than not that the erroneous admission of the [other act] evidence did not affect” the verdict. United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991). AFFIRMED. 2