United States v. Hernandez , 284 F. App'x 24 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ALONZO HERNANDEZ, a/k/a Jose Mario Ortiz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cr-00310-GBL-1)
Submitted: June 17, 2008 Decided: July 14, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lance D. Gardner, LAWRENCE, SMITH & GARDNER, Fairfax, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Tino Lisella,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Alonzo Hernandez appeals his jury conviction and
thirty-three month sentence for reentering the United States after
being deported for committing an aggravated felony, in violation of
8 U.S.C. § 1326 (2000). Hernandez claims the district court erred
when it granted the Government's motion in limine, preventing him
from asserting an entrapment by estoppel defense at trial. Finding
no error, we affirm.
A criminal defendant may assert an entrapment by estoppel
defense when the government affirmatively assures him that certain
conduct is lawful, the defendant thereafter engages in the conduct
in reasonable reliance on those assurances, and a criminal
prosecution based upon the conduct ensues. See Raley v. Ohio, 360
U.S. 423, 438-39 (1959). To be able to assert the defense,
however, a defendant has to show more than "vague or even
contradictory" statements by the government; "he must demonstrate
that there was 'active misleading' in the sense that the government
actually told him that the proscribed conduct was permissible."
United States v. Aquino-Chacon, 109 F.3d 936, 939 (4th Cir. 1997).
(internal citation omitted). Because Hernandez's evidence failed
to establish he was entitled to assert the entrapment by estoppel
defense, we find that the district court properly granted the
Government's motion in limine.
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Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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