FILED NOT FOR PUBLICATION OCT 26 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10382 Plaintiff-Appellee, D.C. No. 2:19-cr-00006-KJM-1 v. JOSE ELFEGO GUTIERREZ-GOMEZ, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding Submitted October 20, 2020** San Francisco, California Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges. Defendant Jose Elfego Gutierrez-Gomez appeals his conviction and sentence for illegally reentering the United States in violation of 8 U.S.C. § 1326(a), (b)(2). We have jurisdiction under 28 U.S.C. § 1291, and 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. Gutierrez-Gomez argues that the district court erred by instructing the jury that the term “reasonably near” had “no special, legal definition,” as that term related to the Government’s burden to prove that Gutierrez-Gomez was found unlawfully present in the United States on a date “reasonably near” the date alleged in the indictment. Because Gutierrez-Gomez did not properly object to the district court’s supplemental instruction, we review it for plain error. See United States v. Varela, 993 F.2d 686, 688 (9th Cir. 1993). Gutierrez-Gomez first contends that the jury should have been instructed to consider several “constitutional factors” in determining whether the Government proved that he was found in the United States on a date reasonably near the date alleged in the indictment. Certainly, a substantial variance between the proof at trial and the allegations of the indictment implicates the defendant’s Fifth Amendment rights “not to be held to answer for a felony except on the basis of facts which satisfied a grand jury that he should be charged[,] . . . to fair notice of what he is accused of, and not to be twice put in jeopardy on the accusation.” United States v. Tsinhnahijinnie, 112 F.3d 988, 992 (9th Cir. 1997). However, (1) Gutierrez-Gomez does not dispute that he was informed as to the charges against him, so as to be able to present his defense and not be taken by surprise by the evidence at trial and (2) he was not likely to be subject to double jeopardy. A 2 reasonable jury could have (and did) convict him of being “found in” the United States and “reasonably near” November 13. Gutierrez-Gomez cites several of our decisions that have addressed whether a variance between the date proved at trial and the date alleged in the indictment was impermissible—i.e., whether the dates were “reasonably near”—and contends that these decisions compose “a specialized legal definition of ‘reasonably near.’” See United States v. Hinton, 222 F.3d 664, 672–73 (9th Cir. 2000); United States v. Casterline, 103 F.3d 76, 78–79 (9th Cir. 1996); Lelles v. United States, 241 F.2d 21, 25 (9th ...
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