United States v. Popoca-Anselmo ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANUEL POPOCA-ANSELMO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-37-F)
Submitted: September 3, 2004 Decided: October 6, 2004
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Manuel Popoca-Anselmo appeals his conviction for illegal
reentry into the United States following deportation, in violation
of 18 U.S.C. §§ 1326(a), (b)(2) (2000).
Popoca-Anselmo’s sole contention on appeal is that the
district court erred by refusing to instruct the jury on the
defense of duress. Popoca-Anselmo asserts that he returned to this
country, albeit without permission, to avoid death threats made
against him in his native country of Mexico. This court reviews de
novo a district court's decision not to instruct a jury on a
defendant's theory of a case. United States v. Singh, 54 F.3d
1182, 1189 (4th Cir. 1995). Where there is insufficient evidence,
as a matter of law, to support an element of the affirmative
defense, the defendant can be precluded from presenting any
evidence of duress to the jury. United States v. Sarno, 24 F.3d
618, 621 (4th Cir. 1994).
In order to establish a claim of duress, the defendant
must show that: (1) he acted under an immediate threat of serious
bodily injury; (2) he had a well-grounded belief that the threat
would be carried out; and (3) he had no reasonable opportunity to
avoid violating the law and the threatened harm. United States v.
Bailey, 444 U.S. 394, 410-15 (1980); United States v. King, 879
F.2d 137, 138-39 (4th Cir. 1989). A defendant has the burden of
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establishing sufficient evidence of all three elements of the
defense. Bailey, 444 U.S. at 415; Tanner, 941 F.2d at 588.
After careful review of the record, we conclude, as the
district court found, that Popoca-Anselmo did not avail himself of
reasonable opportunities to avoid violating the law and the
threatened harm. Bailey, 444 U.S. at 410-15. Accordingly, we find
that Popoca-Anselmo has not met his burden, and the district court
properly refused to instruct the jury on the affirmative defense of
duress. Id.; Singh, 54 F.3d at 1189. We therefore affirm Popoca-
Anselmo’s conviction and sentence. 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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