United States v. Rodolfo Ibarra , 584 F. App'x 382 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10230
Plaintiff - Appellee, D.C. No. 3:12-cr-00207-RS-1
v.
MEMORANDUM*
RODOLFO PONCE IBARRA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted May 13, 2014
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
Defendant-Appellant Rodolfo Ponce Ibarra (“Ibarra”) appeals his conviction
for reentry as a removed alien in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court correctly concluded that Ibarra’s offer of proof was
insufficient as a matter of law to support his proffered necessity defense. Ibarra
failed to show that a reasonable jury could conclude that he entered the United
States in order to prevent imminent harm, or that he had no legal alternative to
violating the law. See United States v. Arellano-Rivera, 244 F.3d 1119, 1125–26
(9th Cir. 2001).
The district court neither misapplied U.S.S.G. § 3E1.1 nor clearly erred in
determining that Ibarra failed to clearly demonstrate acceptance of responsibility
for his offense. See U.S.S.G. § 3E1.1 cmt. n.1 (listing factors the district court may
consider in determining whether an adjustment is warranted).
Ibarra argues that the district court erroneously concluded that he was not
eligible for an adjustment for acceptance of responsibility because he asserted a
duress defense. It is true that a defendant’s assertion of duress or necessity as an
affirmative defense does not preclude the district court from granting a sentencing
reduction for acceptance of responsibility. See United States v. Martinez-Martinez,
369 F.3d 1076, 1089–90 (9th Cir. 2004) (holding that where a defendant exercises
his constitutional right to a trial and presents a duress defense, the determination
whether he clearly accepted responsibility for his criminal conduct is based
“primarily upon pre-trial statements and conduct” (emphasis omitted) (quoting
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§ 3E1.1 cmt. n.2)). Moreover, “the affirmative defense of duress does not dispute
any of the . . . essential elements of the crime charged.” United States v. Gamboa-
Cardenas, 508 F.3d 491, 505 (9th Cir. 2007). We do not, however, understand the
district court to have concluded that Ibarra was not eligible for an adjustment for
acceptance of responsibility simply because he asserted a duress defense. Rather,
the district court considered the relevant § 3E1.1 factors and concluded that Ibarra,
through his pretrial statements and conduct, had not made “a full and complete
acceptance of responsibility to warrant the departure.” This determination was not
clearly erroneous.
In declining to grant a downward departure for imperfect duress under
U.S.S.G. § 5K2.12 the district court recognized its authority to grant a departure,
but concluded that the departure was not warranted on the facts of the case. “The
court’s decision thus is discretionary and therefore not reviewable.” United States
v. Pizzichiello, 272 F.3d 1232, 1239 (9th Cir. 2002).
The district court did not abuse its discretion in imposing a three-year term
of supervised release. U.S.S.G. § 5D1.1(c) provides that “[t]he court ordinarily
should not impose a term of supervised release in a case in which supervised
release is not required by statute and the defendant is a deportable alien who likely
will be deported after imprisonment.” However, the Application Notes for
-3-
§ 5D1.1(c) provide that “[t]he court should . . . consider imposing a term of
supervised release on such a defendant if the court determines it would provide an
added measure of deterrence and protection based on the facts and circumstances
of a particular case.” § 5D1.1 cmt. n.5. Here, the district court noted Ibarra’s
repeated reentries and his criminal history, and explained that “for deterrent
purposes, I think the sentence has to be beyond what he has previously received.”
AFFIRMED.
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