UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50294 Plaintiff-Appellee, D.C. No. v. 3:19-cr-03192-AJB-1

LUCIO MEDINA-SUAREZ, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted November 16, 2021 Pasadena, California

Filed April 1, 2022

Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges, and John Antoon II, * District Judge.

Opinion by Judge Antoon

* The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 2 UNITED STATES V. MEDINA-SUAREZ

SUMMARY **

Criminal Law

The panel vacated a conviction for felony attempted illegal entry in violation of 8 U.S.C. § 1325(a), and remanded for further proceedings, in a case in which the defendant contended that the trial court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry.

There was no dispute about the first step of the two-part test for lesser-included instructions: misdemeanor attempted illegal entry is a lesser-included offense of felony attempted illegal entry, in that the elements of the two offenses are the same except that felony attempted illegal entry includes the added element of a prior § 1325(a) conviction.

As for the second step of the two-part test, the panel held that the district court abused its discretion in finding that the jury could not rationally find the defendant guilty of the lesser offense and acquit him of the greater offense. Noting that a court may not weigh the evidence in determining whether to give a lesser-included offense instruction, the panel wrote that a rational jury could have surveyed the evidence presented at trial—including the A-file custodian’s testimony on cross-examination—and concluded that it had reasonable doubts about whether the defendant charged in this case was the same defendant named in a prior misdemeanor illegal-entry judgment. The panel concluded ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MEDINA-SUAREZ 3 that under these circumstances, a lesser-included instruction was required.

Because the panel vacated the conviction and remanded, the panel did not reach evidentiary issues raised by the defendant.

COUNSEL Kara Hartzler (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant. Zachary J. Howe (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section; Randy S. Grossman, Acting United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff- Appellee.

OPINION ANTOON, District Judge:

A jury found Lucio Medina-Suarez guilty of felony attempted illegal entry into the United States by an alien in violation of 8 U.S.C. § 1325(a). Medina-Suarez contends that the trial court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry, and he also challenges several evidentiary rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Medina-Suarez’s lesser-included instruction argument has merit and is dispositive of this appeal, we vacate and remand without reaching the evidentiary issues. 4 UNITED STATES V. MEDINA-SUAREZ

I. BACKGROUND

In July 2019, border patrol age