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Illegal Entry Conviction Reversed

USA V. LUCIO MEDINA-SUAREZ Docket: 20-50294, Opinion Date: April 1, 2022. Defendant was convicted of attempted illegal entry under 8 U.S.C. Sec. 1325(a). On appeal to the Ninth Circuit, Defendant claimed the district court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry. The Ninth Circuit reversed Defendant’s conviction. Under United States v. Arnt, 474 F.3d 1159 (9th Cir. 2007) A defendant is entitled to an instruction on a lesser-included offense if 1) the elements of the lesser offense are a subset of the elements of the charged offense and; 2) a jury could rationally find the defendant guilty of the lesser offense and acquit him of the more serious offense. Here, the government conceded that misdemeanor attempted illegal entry is a less-included offense of felony attempted illegal entry. The Ninth Circuit held that a rational juror could have acquitted Defendant of the more serious offense in favor of convicting him of misdemeanor illegal entry. The only distinct element required for felony attempted illegal entry is a prior conviction for the same crime. Thus, the jury could have rationally chosen the lesser offense by finding that the government failed to prove Defendant was previously convicted under 8 U.S.C. Sec. 1325(a). #lesserincludedoffense #9thcircuit #reversal

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