NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50370 Plaintiff-Appellee, D.C. No. 3:18-cr-05378-GPC-1 v. Southern District of California, San Diego FABIAN HERNANDEZ-BENITEZ, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Gonzalo Curiel, District Judge, Presiding Submitted March 2, 2021** 1F P Pasadena, California Before: SILER,*** HURWITZ, and COLLINS, Circuit Judges. Fabian Hernandez-Benitez appeals his conviction under 8 U.S.C. § 1326 for * 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. attempted entry following removal. Hernandez argues that the prosecution misstated evidence, vouched for the government’s case, and improperly urged the jury to draw propensity inferences from prior bad acts. He also claims cumulative error. We affirm. 1. To the extent that Hernandez did not offer specific objections below to the prosecution’s statements he challenges on appeal, we review for plain error. See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990); United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986). Reversal is warranted only if “(1) there was error; (2) it was plain; (3) it affected the defendant’s substantial rights; and (4) viewed in the context of the entire trial, the impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Alcantara-Castillo, 788 F.3d 1186, 1190–91 (9th Cir. 2015) (cleaned up). Given defense counsel’s contemporaneous objection, we review for harmless error the prosecution’s reference to the defendant’s admission that he entered through “Johnny Wolf’s.” See United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015). 2. The evidence of Hernandez’s guilt was overwhelming. On November 14, 2018, Border Patrol Agent Arturo Santos responded to a report that two people were running through Johnny Wolf’s, an area near the Otay Mesa Port of Entry. Upon arrival at the area, Santos saw two individuals lying in the grass. After Santos exited his car, one ran to the Mexican border and scaled the fence; Santos detained 2 the other. The detainee identified himself as “Fabian Hernandez,” said he was from Mexico, and told Santos he did not have documents to enter the United States. Santos immediately transported the detainee to the Chula Vista Border Patrol Station, where the detainee gave a videotaped statement two hours after his arrest. In the statement, which was introduced at trial, the detainee said his name was Fabian Hernandez-Benitez; he was a Mexican citizen who lacked documents to enter the United States legally; he had “jumped over the fence”—which he knew was a border fence—and “crossed through the hills” that day; and he planned to go …
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