PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE ALFREDO LANDEROS- MENDEZ,

Defendant-Appellant.	No. 99-8018

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 98-CR-115-D)

Joseph D. Richter, Casper, Wyoming, for Appellant.

Lisa E. Leschuck, Assistant United States Attorney, Cheyenne, Wyoming, (David D. Freudenthal, United States Attorney, District of Wyoming, with her on the brief), for Appellee.

Before KELLY, MURPHY, Circuit Judges, and COOK,* Senior District Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Defendant-Appellant Jose Alfredo Landeros-Mendez appeals his conviction on one count of illegal reentry by an alien previously deported or removed1 and one count of unlawful firearm possession. See 8 U.S.C. § 1326(a), (b)(2); 18 U.S.C. § 922(g)(5). Landeros-Mendez argues that the United States presented insufficient evidence to support his illegal reentry conviction because it did not introduce an order of deportation or removal ("order of deportation or removal" or "order"). The United States is not required to introduce an order of deportation or removal to satisfy its burden of proof to support a conviction under 8 U.S.C. § 1326(a). The United States introduced sufficient evidence to sustain Landeros-
Mendez's convictions. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

II. FACTS AND PROCEDURAL HISTORY

On May 5, 1998, Landeros-Mendez was arrested in Casper, Wyoming for carrying a concealed weapon. It was subsequently discovered that Landeros- Mendez had been previously deported or removed from the United States and that he had not received permission from the Attorney General to reenter the country. He was therefore indicted on two counts. Count one charged Landeros-Mendez with being an alien who had been deported or removed and had reentered the United States without the permission of the Attorney General. See 8 U.S.C. § 1326(a)(1), (b)(2). Count two charged him with being an alien unlawfully present in the United States in possession of a firearm. See 18 U.S.C. § 922(g)(5).

At the ensuing jury trial, Jeffrey Taylor, a detention enforcement officer with the Immigration and Naturalization Service (INS), testified about the procedures followed by INS officers when they physically expel a person from the United States. He testified that after an order of deportation or removal is issued and signed by an immigration judge, a warrant of deportation or removal is prepared. The warrant of deportation or removal includes the name, file number, fingerprint, and photograph of the individual who is to be physically expelled, as well as the statutory authority for the expulsion.

The warrant of deportation or removal issued for Landeros-Mendez in 1997 ("the Warrant") was admitted into evidence at his trial. Officer Taylor testified that he had signed the Warrant because he had taken Landeros-Mendez's fingerprint for that document. Landeros-Mendez stipulated that the fingerprint on the Warrant was his. Santiago Valle, another INS detention enforcement officer, also identified his and another officer's signature on the Warrant, which he and the fellow officer had signed to verify that they had witnessed Landeros-Mendez's physical expulsion from the United States at the Mexican border in July 1997. Officer Taylor and Officer Valle testified that an alien cannot be physically expelled unless an order of deportation or removal has been issued. Landeros- Mendez's own attorney read from a section of the Warrant which stated that Landeros-Mendez was "subject to removal or deportation from the United States, based upon a final order by," and a box had been checked next to the phrase "an immigration judge in exclusion, deportation, or removal proceedings."

At the close of the evidence, Landeros-Mendez moved for a judgment of acquittal. See Fed. R. Crim. P. 29(a). Although conceding the evidence showed he had been physically expelled, Landeros-Mendez argued that because the government had not introduced an order of deportation or removal, there was insufficient evidence from which a reasonable jury could find that he had been the subject of legal deportation or removal proceedings. The motion was denied, and the jury returned a verdict of guilty on both counts. Landeros-Mendez then filed a renewed motion for acquittal on the same basis, and this motion was also denied. See Fed. R. Crim. P. 29(c). He was sentenced to 115 months imprisonment and $2,200 in fines and assessments.

III. ANALYSIS

A. Standard of Review

Landeros-Mendez argues that the government presented insufficient evidence to support his convictions. In reviewing the sufficiency of the evidence to support a conviction, this court reviews the record de novo. See United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). The evidence must be viewed in the light most favorable to the government, and this court must determine whether there was direct and circumstantial evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. See id.

B. Illegal Reentry after Deportation or Removal

Landeros-Mendez was convicted for violating 8 U.S.C. § 1326(a), (b)(2), which provide:

(a) . . . Subject to subsection (b) of this section, any alien who--

(1) has been denied admission, excluded, deported, or removed . . . and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless . . . the Attorney General has expressly consented to such alien's reapplying for admission . . .

shall be fined under Title 18, or imprisoned not more than 2 years, or both.

(b) . . . Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection . . .

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both. . . .

Landeros-Mendez challenges the sufficiency of the evidence only with respect to the "deported or removed" element in 8 U.S.C. § 1326(a)(1). He concedes that the government proved he was physically expelled from the United States.2 He nevertheless argues that because the government did not introduce an order of deportation or removal, it failed to prove he had previously been the subject of legal deportation or removal proceedings.3

Based on the evidence presented at trial, a reasonable jury could have concluded that Landeros-Mendez had previously been the subject of deportation or removal proceedings resulting in an order of deportation or removal. The Warrant, which was admitted into evidence, contained a photograph of Landeros- Mendez, his fingerprint, and the signatures of the INS agent who fingerprinted him and the two INS agents who witnessed his physical expulsion from the United States. Two INS agents testified that a warrant of deportation or removal is prepared after an order of deportation or removal is issued and signed by an immigration judge and that they cannot physically expel an alien unless an order of deportation or removal has been issued. In addition, the Warrant cited the statutory authority under which Landeros-Mendez was to be physically expelled, and his own attorney read directly from a section of the Warrant wherein it stated that Landeros-Mendez's expulsion was based upon a final order by "an immigration judge in exclusion, deportation, or removal proceedings."

Relevant case law also supports the conclusion that the government need not introduce an order of deportation or removal to establish a violation of 8 U.S.C. § 1326(a). See United States v. Anaya, 117 F.3d 447, 448-49 (10th Cir. 1997). Although not clearly distinguishing between deportation or removal proceedings and physical expulsion, the court described the warrant of deportation or removal, together with testimony from INS officers who had expelled the defendant, as "overwhelming" evidence of defendant's guilt under 8 U.S.C. § 1326. See id.; see also United States v. Quezada, 754 F.2d 1190, 1193-
95 (5th Cir. 1985) (warrant of deportation admissible and sufficient to satisfy the arrest requirement of the then-applicable version of § 1326)4; cf. United States v. Agustino-Hernandez, 14 F.3d 42, 43 (11th Cir. 1994) (warrant of deportation properly admitted under Fed. R. Evid. 803(8)(B) and no mention made of order). This court therefore concludes there was sufficient evidence from which a reasonable jury could find that Landeros-Mendez was previously deported or removed under 8 U.S.C. § 1326(a)(1).5

IV. CONCLUSION

For the reasons stated above, this court concludes there was sufficient evidence to support Landeros-Mendez's convictions, and affirms.