United States v. Claudio Enrique Nunez Rojas ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 29, 2007
No. 06-16111 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00024-CR-FTM-99DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAUDIO ENRIQUE NUNEZ ROJAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 29, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Claudio Enrique Nunez Rojas (“Nunez”) appeals his conviction for illegal
re-entry after previously having been convicted of an aggravated felony under 8
U.S.C. §§ 1326(a) and 1326(b)(2). Nunez did not avail himself of the opportunity
to petition the Attorney General or Secretary for Homeland Security for re-
admission into the United States. Because he did not avail himself of this
reasonable legal alternative to the criminal conduct of illegally re-entering, Nunez
could not establish a necessity defense, and the district judge did not err in
precluding him from presenting it. We AFFIRM.
I. FACTS
Nunez was indicted on one count of illegally re-entering the United States
after previously having been convicted of an aggravated felony. According to the
presentence investigation report (“PSI”), Nunez was a citizen and national of
Colombia, became a resident alien in 1974, was convicted in 1992 of sexual
activity with a child, was deported in 2003, and re-entered the United States on 1
May 2005, without having obtained the permission of the Attorney General or his
successor, the Secretary for Homeland Security.
At trial, Nunez informed the district judge that he intended to present a
necessity defense, and the judge noted that a proffer would be required before he
would allow evidence to be presented on that issue. Nunez proffered that, prior to
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his deportation, he operated a successful painting business that provided for
himself, his wife (a stay-at-home mother), and their daughter, who was an honor-
roll student. When deported, Nunez first stayed with his brother, but, because of
his age and poor economic conditions, he was unable to find work. His wife and
daughter, both United States citizens, attempted to move with him to Colombia.
Because they spoke no Spanish, they were subject to the general dangers of life in
Colombia and, consequently, returned to the United States.
Nunez’s wife was unable to find work in the United States because of her
lack of education or job skills and inability to cope with the upheaval in their lives.
The Nunezes were unable to make mortgage payments, and their home was
foreclosed. In Colombia, Nunez was no longer permitted to live with his brother,
and stayed in hotels until his money ran out, at which point he became homeless.
His wife and daughter moved into a rental property but were about to be evicted
because they were unable to make rent payments. As a result of these events,
Nunez’s daughter began abusing alcohol and marijuana, was expelled from school,
and was hospitalized twice for alcohol poisoning. Nunez’s immigration attorney
advised him that he was not eligible to return to the United States and that he
would be unable to obtain a waiver to re-enter. Additionally, even if successful,
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the process would have taken four to five months, too long in view of his family’s
impending eviction.
The district judge assumed that the facts proffered were true and could be
proven but found that the necessity defense was not available to Nunez. R3 at 58-
61. The judge stated that “a person is not allowed to make that determination [that
the Attorney General or Secretary of Homeland Security would not have granted
consent to re-enter] and thereby simply forego the available remedies, and that the
defendant had reasonable legal alternatives available, and that he had to use those,
and that he did not use those in this case.” Id. at 59-60. The judge alternatively
held that, assuming Nunez was correct that he had no reasonably available legal
alternatives, necessity could never be a defense to illegal re-entry. Id. at 60.
The jury found Nunez guilty, and the district judge sentenced him to 36
months of imprisonment. R1-61 at 1-2. This appeal followed.
II. DISCUSSION
Nunez argues that he made a proffer sufficient to present a necessity defense
to the jury because (1) he faced the imminent harm of the destruction of his family;
(2) the jury could have concluded that the destruction of his family was a greater
evil than his illegal re-entry; (3) there was a clear causal relationship between his
re-entry and the harm that he sought to prevent; and (4) petitioning the Attorney
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General for re-entry was not a viable legal alternative. Nunez asserts that
petitioning was not viable because his immigration attorney advised him that he
was ineligible for re-admission and that, even if re-admission were granted, it
would have taken four or five months, during which time his family’s condition
would have further deteriorated.
“We review de novo a district court's determination whether a defendant has
set forth a sufficient proffer to permit the defense of necessity.” United States v.
Dicks, 338 F.3d 1256, 1257 (11th Cir. 2003) (per curiam). The defense of
necessity or justification is an affirmative defense to some criminal statutes, and, if
available, the defendant bears the burden of proving the defense by a
preponderance of the evidence. Id. Although we have not determined whether a
defense of necessity can be presented against a charge of illegal re-entry, we have
determined that, to the extent such a defense may be possible, it would require the
defendant to show, among other things, that he “‘had no reasonable legal
alternative to violating the law.’” Id. at 1258 (quoting United States v. Deleveaux,
205 F.3d 1292, 1297 (11th Cir. 2000)). “In general, petitioning the Attorney
General for re-entry is a viable and reasonable legal alternative to illegal re-entry.”
Id.
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Even if necessity or justification is an available defense to illegal re-entry
under 8 U.S.C. § 1326, Nunez did not establish a necessity defense. He bore the
burden of proving the defense, and Nunez did not proffer sufficient evidence to
suggest that the application process was not a viable or reasonable legal alternative.
The opinion of Nunez’s immigration attorney—that a petition would have been
futile—does not change this requirement. The attorney’s opinion, “however
likely,” was still speculation. See id. at 1257 (discussing United States v.
Arellano-Rivera, 244 F.3d 1119, 1125 (9th Cir. 2001)). The possible delay
between the initiation of the application process and its conclusion is, likewise,
insufficient to render a petition unviable or unreasonable. Id. at 1257 (holding that
a petition to the Attorney General was a viable legal alternative where the
defendant proffered that he suffered from AIDS, was “near dead at the time,” and
illegally re-entered the United States in order to seek treatment). Accordingly, the
district judge did not err in preventing Nunez from presenting a necessity defense.
III. CONCLUSION
Because Nunez failed to petition first the Attorney General or Secretary for
Homeland Security for readmission to the United States, he could not establish a
“necessity defense,” even if he could establish its appropriateness. Accordingly,
his conviction for illegal re-entry is AFFIRMED.
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