United States v. Salazar-Gonzalez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50411
Plaintiff-Appellee, D.C. No.
v.
 CR-04-00182-MJL
GUMERCINDO SALAZAR-GONZALEZ, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
June 8, 2005—Pasadena, California
Opinion Filed April 21, 2006
Amended Opinion Filed August 15, 2006
Before: Betty B. Fletcher, Pamela A. Rymer and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Rymer
9607
UNITED STATES v. SALAZAR-GONZALEZ 9611
COUNSEL
Vincent J. Brunkow, Steven F. Hubachek, Federal Defenders
of San Diego, Inc., San Diego, California, for the defendant-
appellant.
Shanna L. Dougherty, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
ORDER
Defendant-Appellant’s petition for panel rehearing, filed
June 5, 2006, is GRANTED. The disposition filed on April
21, 2006 is amended and replaced by the disposition filed
concurrently with this order. No further petitions for rehearing
will be entertained by this court.
OPINION
FISHER, Circuit Judge:
Defendant-appellant Gumercindo Salazar-Gonzalez
(“Salazar-Gonzalez”) appeals his conviction for being found
in the United States without the consent of the Attorney Gen-
eral in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291. At trial, the district court refused to
give Salazar-Gonzalez’s proposed jury instruction requiring
the government to prove beyond a reasonable doubt that
Salazar-Gonzalez “voluntarily reentered” and “knew he was
in” the United States. The district court concluded that
Salazar-Gonzalez presented no evidence to support a volun-
tariness instruction, but did not separately address the knowl-
edge instruction. Although this was in error, we affirm the
district court nonetheless because it is “clear beyond a reason-
able doubt that a rational jury would have found the defendant
9612 UNITED STATES v. SALAZAR-GONZALEZ
guilty absent the error[.]” Neder v. United States, 527 U.S. 1,
18 (1999). However, because Salazar-Gonzalez preserved his
nonconstitutional Booker claim that he is entitled to resen-
tencing under the now-advisory Sentencing Guidelines, and
the district court’s error in sentencing him under the manda-
tory regime was not harmless, we vacate and remand for
resentencing under the advisory regime. United States v.
Beng-Salazar, 452 F.3d 1088 (9th Cir. 2006).
I.
On October 23, 2003, Border Patrol Agent Raul Castorena
noticed footprints crossing the unmarked United States-
Mexico border fence near Jacumba, California. After follow-
ing these footprints for approximately 100 yards, Castorena
found Salazar-Gonzalez, sitting with 10 other people, partially
obscured in moderately dense brush. He ordered them not to
move and then asked their citizenship and if they “had proper
documents to be legally present in the United States.” All of
the individuals, including Salazar-Gonzalez, responded that
they were citizens of Mexico and did not have documents
authorizing them to be in the United States.
Salazar-Gonzalez, who had been convicted of crimes in the
United States and deported on three previous occasions, most
recently on October 20, 2003, was charged and convicted
with being found in the United States after deportation in vio-
lation of 8 U.S.C. § 1326. The district court increased Salazar-
Gonzalez’s base offense level by 16 levels pursuant to
U.S.S.G. § 2L1.2, based on his being deported after sustaining
a conviction for a crime of violence, and it increased his crim-
inal history category from level IV to V, based on its finding
that two prior convictions arose from separate arrests. The
district court sentenced Salazar-Gonzalez to 70 months’
imprisonment, a sentence in the middle of the range pre-
scribed by the United States Sentencing Guidelines.
UNITED STATES v. SALAZAR-GONZALEZ 9613
II.
[1] Preliminarily, we address the district court’s denial of
Salazar-Gonzalez’s motion to exclude a “Certificate of Non-
existence of Record” (“CNR”) submitted by the government
to prove that Salazar-Gonzalez had not received the Attorney
General’s permission to apply for readmission to the United
States. See 8 U.S.C. § 1326 (“[A]ny alien who — (1) has been
. . . deported . . . and thereafter (2) . . . is at any time found
in, the United States, unless (A) . . . the Attorney General has
expressly consented to such alien’s reapplying for admission
. . . , shall be fined under Title 18, or imprisoned not more
than 2 years, or both.” (emphasis added)). Salazar-Gonzalez
contends that admission of the CNR violated his Sixth
Amendment right to confront witnesses against him, as articu-
lated by the Supreme Court in Crawford v. Washington, 541
U.S. 36 (2004). The CNR is not testimonial evidence under
Crawford; the district court properly admitted it as a nontesti-
monial public record. United States v. Cervantes-Flores, 421
F.3d 825, 834 (9th Cir. 2005).
III.
Salazar-Gonzalez principally challenges the district court’s
refusal to give a jury instruction on the general intent element
of being a deported alien “found in” the United States under
§ 1326.1 At trial, Salazar-Gonzalez offered as his defense that
1
Salazar-Gonzalez argues that the district court erred by failing to
instruct on voluntariness, and that this failure precluded him from present-
ing the defense that he “inadvertently” or “unknowingly” wandered into
the United States. Although Salazar-Gonzalez argues that he was entitled
to a jury instruction embodying his defense theory, his objection to the
jury instructions is more appropriately viewed as a request that the jury
receive an instruction on each element of the crime. Indeed, in his opening
brief, Salazar-Gonzalez begins by claiming that “[t]he district court failed,
over objection, to instruct on the elements of general criminal intent.”
Similarly, before the district court, defense counsel argued that “voluntari-
ness of return is an element which must be proven beyond a reasonable
doubt.” The district court’s ruling, “den[ying] the defense motion that a
voluntariness issue or element be added,” further supports this view of
Salazar-Gonzalez’ request. (Emphasis added.)
9614 UNITED STATES v. SALAZAR-GONZALEZ
he had not knowingly and voluntarily entered the United
States but rather wandered into the country inadvertently,
without knowing that he was crossing the border. Salazar-
Gonzalez proposed a jury instruction specifying that the jury
must, in order to convict, find that he had “voluntarily reen-
tered the United States” and “knew he was in the United
States.” His proposed instruction concluded: “It is not suffi-
cient that the government proves that Mr. Salazar was ‘found
in’ the United States; rather, it must prove that Mr. Salazar
committed an intentional act, that is, a voluntary entry.”
Although the district court agreed that a “voluntariness”
instruction “could be applicable” and “certainly not frivolous”
in some cases, the court rejected Salazar-Gonzalez’ proposed
instruction, concluding that “in this case the evidence does not
warrant it.” The court instead instructed the jury as follows:
In order for the defendant to be found guilty of
[being a deported alien found in the United States],
the government must prove each of the following
elements beyond a reasonable doubt: First, the
defendant is an alien; second, the defendant was
deported or removed from the United States; . . .
third, the defendant was subsequently found in the
United States; and fourth, at the time the defendant
was found in the United States he did not have the
consent of the United States Attorney General or his
designated successor, the Secretary of the Depart-
ment of Homeland Security. (emphasis added).
“We review de novo the district court’s interpretation of the
requisite elements of a federal offense.” United States v.
Jimenez-Borja, 378 F.3d 853, 857 (9th Cir. 2004). The omis-
sion of an element from jury instructions is subject to
harmless-error analysis. Neder, 527 U.S. at 10.
A.
[2] This case highlights an area of confusion in our § 1326
jurisprudence that we now clarify. As an initial matter, the
UNITED STATES v. SALAZAR-GONZALEZ 9615
district court erroneously construed Salazar-Gonzalez’s pro-
posed jury instruction — which required the jury to find that
he both “voluntarily reentered” and “knew he was in” the
United States — as a “voluntariness” instruction only.
Although § 1326 does not include an express mens rea ele-
ment, our cases make clear that being “found in” the United
States under § 1326 is a crime of “general intent.” See, e.g.,
United States v. Rivera-Sillas, 417 F.3d 1014, 1020 (9th Cir.
2005) (“A ‘found in’ offense under § 1326 is a general intent
crime.”); United States v. Pina-Jaime, 332 F.3d 609, 613 (9th
Cir. 2003) (“[B]eing found in the United States in violation of
§ 1326(a)(2) is a crime of general intent . . . .”). We have also
held that “voluntariness of the return is an element of the
[“found in” offense] and, as such, must be proved beyond a
reasonable doubt by the prosecution.” United States v.
Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir. 2000); see
also United States v. Salazar-Robles, 207 F.3d 648, 650 (9th
Cir. 2000) (upholding a “found in” conviction and finding that
“[t]he voluntary element consisted in Salazar Robles’s
return”).
[3] However, a general intent mens rea also requires that a
“defendant possessed knowledge with respect to the actus
reus of the crime.” Carter v. United States, 530 U.S. 255, 268
(2000); see also United States v. Gracidas-Ulibarry, 231 F.3d
1188, 1196 (9th Cir. 2000) (en banc) (“In general, ‘purpose’
corresponds to the concept of specific intent, while ‘knowl-
edge’ corresponds to general intent.”). To act with general
intent, a defendant must know the facts that make his actions
illegal, but not that the action itself is illegal. That is, the
defendant need only intend to perform the underlying prohib-
ited action, not to break the law. Thus, the Supreme Court has
held that a federal firearms statute, construed as requiring a
mens rea of general intent, requires the government to prove
that a defendant knew he possessed a firearm with the features
barred by the statute, even if he was unaware that the law for-
bade possession of such a firearm. Staples v. United States,
511 U.S. 600, 619 (1994). Similarly, a defendant may be
9616 UNITED STATES v. SALAZAR-GONZALEZ
found guilty of a crime requiring general intent to steal if he
knowingly and voluntarily “t[ook the] property of another by
force and violence or intimidation” even if he intended to
return the property later. Carter, 530 U.S. at 268; see also
Gracidas-Ulibarry, 231 F.3d at 1194 (explaining that if
attempted illegal reentry were a general intent crime, a previ-
ously deported alien who went to the border to pick up forms
to apply for reentry could be convicted of attempting to reen-
ter, regardless of his or her intent to comply with the law).
[4] For example, in Rivera-Sillas, the defendant challenged
an indictment charging him with being found in the United
States in violation of § 1326 on the ground that it failed to
charge him with “knowing that he was in the United States.”
417 F.3d at 1020. We first held that the general intent mens
rea of the § 1326 “found in” offense required that a defendant
act voluntarily and knowingly, id. (citing United States v.
Berrios-Centeno, 250 F.3d 294, 299 (5th Cir. 2001)); we then
concluded that knowledge, like voluntariness, can be inferred
from the fact of the defendant’s presence in the United States
and need not be expressly pled in an indictment, id. The gov-
ernment’s argument that Rivera-Sillas’ discussion of knowing
entry must be either dictum or incorrect lacks merit.2 It is true
that we have addressed the voluntariness element of the
§ 1326 crime on many occasions and that Rivera-Sillas is the
first case to address plainly the question of knowledge.3
2
We recently confirmed in an en banc decision that a panel creates cir-
cuit law when it “addresse[s] [an] issue and decide[s] it in an opinion
joined in relevant part by the majority of the panel.” Barapind v. Enomoto,
400 F.3d 744, 750-51 (9th Cir. 2005) (en banc). In Rivera-Sillas, the panel
considered whether knowledge, like voluntariness, is an element of the
§ 1326 offense that must be proved by the government beyond a reason-
able doubt. 417 F.3d at 1020. In addressing that issue, the panel decided
that the § 1326 offense constituted a general intent crime and therefore
required a willful and knowing act. Id.
3
In United States v. Pina-Jaime, we suggested that knowledge was an
element of the “found in” offense but did not address the issue directly.
332 F.3d 609 (9th Cir. 2003). Although we stated that “[t]he government
UNITED STATES v. SALAZAR-GONZALEZ 9617
Supreme Court law and our decisions make clear, however,
that Rivera-Sillas correctly concluded that a defendant must
enter or remain in the United States knowingly as well as vol-
untarily to be convicted under the general intent crime of
being “found in” the United States under § 1326. See also
Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir.
1968) (explaining that § 1326 requires that “[t]here . . . be the
general intent to do the prohibited act, to-wit enter,” and
upholding the defendant’s conviction under § 1326 for
“knowingly and wilfully enter[ing] the United States”).
[5] We therefore hold that for a defendant to be convicted
of a § 1326 “found in” offense, the government must prove
beyond a reasonable doubt that he entered voluntarily and had
knowledge that he was committing the underlying act that
made his conduct illegal — entering or remaining in the
United States.4
satisfied its burden” of proving intent for a § 1326 offense by proving that
“Pina-Jaime knowingly and wilfully committed the act of staying in the
United States without permission of the Attorney General,” we held only
that “being found in the United States in violation of § 1326(a)(2) . . .
requires the government to prove beyond a reasonable doubt that the
defendant ‘voluntarily’ committed an unlawful act.” Id. at 613.
4
To the extent the district court conflated knowledge and voluntariness,
we are not surprised given the parties’ arguments during the jury instruc-
tion colloquy. For example, in arguing against a voluntariness instruction,
the government suggested that the issue of voluntariness in Salazar-
Gonzalez’s case was “bleeding into his knowledge about entering the
United States.” The government then stated, incorrectly, that such knowl-
edge “is definitely not an element” of the offense. In response, defense
counsel first stated that she was “not arguing . . . that [Salazar-Gonzalez]
has to know he is in the United States,” though later in the proceeding,
defense counsel reintroduced the knowledge concept (albeit in support of
a voluntariness instruction) that “the jury could have reasonably concluded
that Mr. Salazar did not necessarily know he had entered the United
States.”
9618 UNITED STATES v. SALAZAR-GONZALEZ
B.
[6] The Supreme Court has long held that the Due Process
Clause requires the government to prove each element of the
crime beyond a reasonable doubt. In re Winship, 397 U.S. 358
(1970). This same bedrock constitutional principle also entails
a concomitant right for the defendant to have a jury instruc-
tion on each element of the crime. See United States v.
Gaudin, 515 U.S. 506, 511 (1995); United States v. Perez,
116 F.3d 840, 847 (9th Cir. 1997) (en banc) (“Failure to sub-
mit an essential element to a jury relieves the prosecution of
its obligation to prove every element beyond a reasonable
doubt.”). Because “knowledge” is a separate element of the
“found in” offense that, like voluntariness, the government
must prove beyond a reasonable doubt, we hold that the dis-
trict court erred in refusing to instruct the jury on the elements
of knowledge and voluntary entry.
We recognize that some of our cases interpreting § 1326,
when taken out of context, might be read to suggest that the
statute establishes a rebuttable presumption on the element of
general intent, i.e., that the government need not prove in a
“found in” case that a previously deported alien who is appre-
hended in the United States entered the country knowingly
and voluntarily. See, e.g., Rivera-Sillas, 417 F.3d at 1020
(“We are comfortable presuming that a defendant who is
found in the United States willfully and knowingly acted in
order to enter this country.”); Quintana-Torres, 235 F.3d at
1200 (“To dispel the inference [of general intent to be here],
the alien would have to demonstrate that one of the specula-
tive possibilities of involuntary entry had actually taken
place.”). However, a close reading of our case law dispels that
suggestion. First, even those cases that have discussed the
defendant’s ability to rebut the inference of intent by submit-
ting evidence of involuntary entry have consistently described
§ 1326 as allowing only permissible inferences regarding the
defendant’s general intent to commit the crime. See, e.g.,
Rivera-Sillas, 417 F.3d at 1021 (“Because involuntary pres-
UNITED STATES v. SALAZAR-GONZALEZ 9619
ence in the United States is the rare exception and not the
rule, however, we allow an inference of voluntariness where
the defendant has raised no evidence to the contrary.”
(emphasis added)); Quintana-Torres, 235 F.3d at 1200 (“[A]
reasonable juror may well infer that the alien had the intention
to be here when the alien is discovered at any location in the
country other than the border.” (emphasis added)). But noth-
ing in our § 1326 jurisprudence suggests that such permissible
inferences relieve the government of its burden to prove the
“general intent” element of the crime of being “found in” the
United States.
To the contrary, our case law is consistent with the proposi-
tion that the government must prove that the alien’s presence
in the country is both knowing and voluntary. See, e.g.,
Quintana-Torres, 235 F.3d at 1199 (rejecting the govern-
ment’s argument in a “found in” case that it did not have to
prove that the defendant “intentionally reentered” the United
States). Indeed, in most of our cases involving the “general
intent” requirement of the “found in” offense, the defendant
has challenged either the sufficiency of an indictment to
which he pled guilty or the sufficiency of the evidence to sup-
port his conviction after being apprehended well beyond the
United States border. See Rivera-Sillas, 417 F.3d at 1017
(challenging the indictment and sufficiency of the evidence);
United States v. San Juan-Cruz, 314 F.3d 384, 390 (9th Cir.
2002) (challenging the indictment); Parga-Rosas, 238 F.3d at
1211 (challenging the indictment and sufficiency of the evi-
dence); Quintana-Torres, 235 F.3d at 1199 (challenging suffi-
ciency of the evidence). In these contexts, we have declined
to reverse the convictions of aliens who were “found in” the
United States because we have recognized that a jury might
validly draw the factual inference that an alien who is appre-
hended well within the United States has usually committed
a knowing and voluntary act to be here. We have, in other
words, indulged the factual inference that an alien’s discovery
at a location in the United States “other than the border” is
“circumstantial proof” that the alien had the general intent to
9620 UNITED STATES v. SALAZAR-GONZALEZ
enter. See Quintana, 235 F.3d at 1200; see also Rivera-Sillas,
417 F.3d at 1021 (holding that the “general intent of the
defendant to reenter the United States may be inferred from
the fact that the defendant was previously deported and was
subsequently found in the United States”).
[7] However, we have never strayed from requiring proof
of “general intent” as an essential ingredient of a conviction
under § 1326. Nor have we ever suggested that the defense
must present evidence in order to obtain a jury instruction on
that element of the crime (i.e., that the defendant voluntarily
and knowingly acted to enter the United States). Indeed, con-
stitutional principles preclude such suggestions. See, e.g.,
Gaudin, 515 U.S. at 511 (explaining that “[t]he Constitution
gives a criminal defendant the right to demand that a jury find
him guilty of all the elements of the crime with which he is
charged”). Instead, the government’s burden to prove “gen-
eral intent” under § 1326 exists whether or not the defendant
comes forward with evidence demonstrating that he lacked
such intent. Because the district court refused to instruct the
jury on the elements of knowledge and voluntariness, Salazar-
Gonzalez’ right to have a jury instruction on each element of
the crime was violated.
[8] Despite this error, we nonetheless affirm the conviction
because it is “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.”
Neder, 527 U.S. at 18 (holding that the omission of an ele-
ment from jury instructions is subject to harmless error
review). The uncontroverted evidence reveals that Salazar-
Gonzales was found hiding in the brush with 10 other people,
all of whom told the border patrol that they were citizens of
Mexico and did not have authorization to be in the United
States. Although the group was apprehended only 100 yards
from the border, which was unmarked, the area is demarcated
by a fence that ranges from 4 to 11 feet in height.5 In addition,
5
Agent Castorena, testifying before the jury, described the fence and
surrounding terrain as follows:
UNITED STATES v. SALAZAR-GONZALEZ 9621
Agent Castorena testified that he saw footprints on the Mexi-
can side of the border that approached the fence, crossed it
and continued in a northerly direction into the United States.
Agent Castorena further testified that he followed these foot-
prints “approximately 100 yards north of the border road”
until he “came across brush,” where he noticed the 11 individ-
uals “trying to conceal themselves.”
[9] It is unreasonable to believe that 11 Mexican nationals
could cross such a barrier from a far northern point in the
Mexican countryside involuntarily or without knowing that
they were entering the United States. Moreover, Salazar-
Gonzales presented no evidence of involuntary or unknowing
entry other than the description of this fence and the isolated
surrounding area. Cf. Jimenez-Borja, 378 F.3d at 858 (holding
that the district court’s failure to instruct the jury on the ele-
ment of voluntary entry in a “found in” case was harmless
because the defendant was “well within the borders of the
United States,” and there was no evidence to suggest that he
came to be there involuntarily). Under these circumstances,
the record does not contain “evidence that could rationally
lead to a contrary finding with respect to the omitted element”
of knowing and voluntary entry. Neder, 527 U.S. at 19.
Accordingly, we AFFIRM Salazar-Gonzalez’ conviction.
Castorena: [There is a] [dirt] border road . . . running parallel,
right next to the international border fence. . . . In that area there
is a fence that is approximately ten, eleven feet high. And it actu-
ally ends. And then it continues to a shorter fence that is only
three and a half to four feet high. And that is were I saw the foot
sign coming across the lower portion of the fence.
...
[Defense Counsel]: And there is nothing in that area to — there
is not, like, a sign, like a traffic sign that indicates that is the
United States, right?
Castorena: In that immediate area there is not a sign.
9622 UNITED STATES v. SALAZAR-GONZALEZ
C.
Salazar-Gonzalez also argues that the district court uncon-
stitutionally enhanced his sentence under the then-mandatory
Sentencing Guidelines based on facts not alleged in the indict-
ment or proven to a jury, in violation of his Sixth Amendment
rights and Apprendi v. New Jersey, 530 U.S. 466 (2000). Spe-
cifically, the district court increased Salazar-Gonzalez’s crim-
inal history score by three points, which resulted in a one
level increase to his criminal history category, after finding
that he had committed two previous, unrelated offenses under
U.S.S.G. § 4A1.2(a)(2). However, Salazar-Gonzalez was sen-
tenced on the same day for his two previous crimes, and his
sentences were imposed concurrently. Although the fact of a
prior conviction may be found by a district court using a pre-
ponderance of the evidence standard, see Almendarez-Torres
v. United States, 523 U.S. 224 (1998), Salazar-Gonzalez
argues that the district court here did more than merely deter-
mine that he had a prior conviction. Rather, he contends that
the district court had to examine a number of documents,
including several police reports regarding arrests that had
occurred between the two offenses for which Salazar-
Gonzalez was convicted, to find that his prior convictions
were unrelated offenses. Salazar-Gonzalez argues that this
finding ran afoul of the Supreme Court’s decision in Shepard
v. United States, 125 S. Ct. 1254 (2005), because it was based
on impermissible sources.
We need not reach the merits of Salazar-Gonzalez’s Sixth
Amendment argument, because Salazar-Gonzalez is entitled
to full vacatur of his sentence and a remand for resentencing
under United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.
2006), regardless of whether his Sixth Amendment rights
were violated.6
6
If the government on remand continues to assert that the police reports
and other documents, such as the notice to appear, minutes of the clerk’s
record and any incident reports, support application of the enhancement
under § 4A1.1, the district court will need to determine whether Shepard
forecloses the enhancement. See also United States v. Almazan-Becerra,
___ F.3d ___, Slip Op. No. 05-10056 at *4-5 (9th Cir. Aug. 1, 2006).
UNITED STATES v. SALAZAR-GONZALEZ 9623
[10] In Beng-Salazar, we held that “a defendant who raised
an objection in district court based on the Sixth Amendment
holdings of the Apprendi line of cases preserved his [noncon-
stitutional Booker] claim that he is entitled to resentencing
under the advisory Guidelines regime. . . . unless the Govern-
ment can show that the error was harmless.” Id. at 1097. Here,
as in Beng-Salazar, Salazar-Gonzalez objected to the
enhancement of his sentence based on facts that had not been
found by a jury beyond a reasonable doubt, namely that his
two prior convictions were “unrelated.” In support of his
argument, he relied on Blakely v. Washington, 542 U.S. 296
(2004), grounding his objection in the Sixth Amendment right
to a jury trial. These objections preserved Salazar-Gonzalez’s
claim of nonconstitutional error under United States v.
Booker, 543 U.S. 220 (2005).
[11] We further hold that the government has not satisfied
its burden of demonstrating that the district court’s error was
harmless. Indeed, reversal is required even if “we find our-
selves ‘in equipoise as to the harmlessness of the error. . . .’ ”
Beng-Salazar, 452 F.3d at 1096. Because the government
cannot point to any evidence establishing that it is “more
probable than not that the error did not materially affect
[Salazar-Gonzalez’s] sentence,” id. at 1092, we VACATE his
sentence and REMAND for resentencing under the now-
advisory Guidelines.
Conviction AFFIRMED, sentence VACATED and
REMANDED.
RYMER, Circuit Judge, concurring in part and in the judg-
ment:
I concur in Parts I, II, and III.C, and in the judgment on
Parts III.A and B. I part company with respect to the need to
“clarify” what instructions should be given in “found in”
9624 UNITED STATES v. SALAZAR-GONZALEZ
cases for, as the district court correctly held, there was no evi-
dence to support an instruction that Salazar-Gonzalez was not
knowingly and voluntarily found in the United States. He was
found with eleven others, who also had no permission to be
here, hiding in a bush 100 yards away from the border having
climbed a fence that ranged from four to eleven feet at its
lowest point, and offered no evidence that he didn’t know he
was in this country.1 A district court “determination that a fac-
tual foundation does not exist to support a jury instruction
proposed by the defense” is reviewed under the deferential
abuse of discretion standard. United States v. Castellanos-
Garcia, 270 F.3d 773, 775 (9th Cir. 2001). The court acted
well within its discretion in ruling that “[t]here was no evi-
dence whatsoever that would bring that [Salazar-Gonzalez’s
proposed instruction] into play.” This is the beginning and
end of it. The district court had no obligation to give Salazar-
Gonzalez’s proposed instruction, and committed no error in
not doing so. As there is nothing to correct, there is nothing
to “clarify.” We should simply affirm.
1
In these circumstances, there was no basis upon which a reasonable
jury could find that Salazar-Gonzalez did not enter the United States
knowingly and voluntarily. See United States v. Rivera-Sillas, 417 F.3d
1014, 1021 (9th Cir. 2005) (as amended) (observing that there are multiple
possibilities of unknowing and/or involuntary entry, but “because involun-
tary presence is the rare exception and not the rule, we allow an inference
of voluntariness where the defendant has raised no evidence to the con-
trary”); United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.
2000) (stating that absent proof otherwise, a juror may infer the defendant
intended to be in the United States if the defendant is found within this
country); cf. United States v. Castellanos-Garcia, 270 F.3d 773, 775-77
(9th Cir. 2001) (holding that the government need not prove lack of offi-
cial restraint in prosecuting a § 1326 offense unless the defendant comes
forward with evidence that he was not free from official restraint during
the border crossing).