UNITED STATES of America, Plaintiff-Appellee, v. Ricardo MORENO-HERNANDEZ, AKA Ricardo Moreno Hernandez, Defendant-Appellant

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo MORENO-HERNANDEZ, AKA Ricardo Moreno Hernandez, Defendant-Appellant. No. 17-10119 United States Court of Appeals, Ninth Circuit. Submitted February 7, 2018 San Francisco, California Filed February 09, 2018 Shelley Kay-Glenn Clemens, Esquire, Assistant U.S. Attorney, USTU-Office of the US Attorney, Tucson, AZ, for Plaintiff-Appellee Stephanié Kathryn Bond, Esquire, Attorney, Law Offices of Stephanie K Bond, PC, Tucson,-AZ, for Defendant-Appellant Before: THOMAS, Chief Judge, and TASHIMA and CHRISTEN, Circuit Judges. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). [MAJORITY] MEMORANDUM Ricardo Moreno-Hernandez appeals his jury conviction for violating 8 U.S.C. § 1326. We have jurisdiction over this appeal, 28 U.S.C. § 1291, and affirm. The district court did not abuse its discretion in denying Moreno-Hernandez’s motion for a new trial on the grounds of his excluded prior consistent hearsay statement to Immigration & Customs Enforcement officials in September 2015 that he was born in Santa Monica, California. The district court correctly identified Federal Rule of Evidence 801(d)(1)(B) and the four-element test from United States v. Collicott, 92 F.3d 973, 979 (9th Cir.), as amended (Oct. 21, 1996), that guide the admission of prior consistent hearsay statements. The district court’s application of this Rule to Moreno-Hernandez’s prior consistent hearsay statement is not implausible or illogical. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). The prosecution’s inadvertent misstatement does not rise to the level of prosecu-torial misconduct, and does not constitute plain error. See, e.g., United States v. Lloyd, 807 F.3d 1128, 1168 (9th Cir. 2015) (“A prosecutor’s inadvertent mistakes or misstatements are not misconduct.”). For these reasons, Moreno-Hernandez is not entitled to a new trial. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.