United States v. David Llamas-Gonzales , 414 F. App'x 936 ( 2011 )

FILED
NOT FOR PUBLICATION FEB 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50014
Plaintiff - Appellee, D.C. No. 3:08-cr-01449-H-1
v.
MEMORANDUM *
DAVID LLAMAS-GONZALES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted February 9, 2011
Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and ZOUHARY, District
Judge.**
David Llamas-Gonzales appeals his conviction and sentence for illegal
reentry after removal in violation of 8 U.S.C. § 1326. He argues that the district
court failed to properly instruct the jury regarding derivative citizenship and that its
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, Toledo, sitting by designation.
failure to apply newer, more favorable, citizenship requirements violated due
process. Because the district court correctly instructed the jury as to the only
theory of derivative citizenship supported by the record, and because Congress’s
decision to enact new, nonretroactive citizenship requirements withstands rational
basis review, we affirm.
The district court did not err by failing to sua sponte instruct the jury as to
the reduced residency requirements applicable where a U.S. citizen parent served
in the military during the residency period because such an instruction had no
“foundation in the evidence,” United States v. Echeverry, 759 F.2d 1451, 1455 (9th
Cir. 1985), and Llamas “did not rely on this theory of defense at trial,” United
States v. Span, 970 F.2d 573, 578 (9th Cir. 1995). The instructions given by the
district court accurately presented the residency requirements for derivative
citizenship under the Nationality Act of 1940. Because Llamas failed to introduce
any evidence that his father served in the military during the relevant time period,
the instructions given “adequately presented the defendant’s theory of the case.”
United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000).
Requiring Llamas to present a “foundation in evidence” for his derivative
citizenship defense does not impermissibly shift the burden of proof on the issue of
alienage. Although alien status is an element of the § 1326 offense that the
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government must prove beyond a reasonable doubt, United States v.
Smith-Baltiher, 424 F.3d 913, 921 (9th Cir. 2005), a criminal defendant still “has
an obligation to raise defenses in his own behalf,” Echeverry, 759 F.2d at 1455.
In amending the residency requirements of the 1940 Act, Congress chose not
to make its changes retroactive. See, e.g., Immigration Technical Corrections Act
of 1988, Pub. L. No. 100-525, § 23(d), 102 Stat. 2609, 2619 (“The amendment
made [to 8 U.S.C. § 1401] shall apply to persons born on or after November 14,
1986.”). Thus, the requirements in effect at the time of Llamas’s birth, rather than
the more lenient requirements in the amendments, govern Llamas’s case. Runnett
v. Shultz, 901 F.2d 782, 787 (9th Cir. 1990).
That different residency requirements apply to different individuals claiming
derivative citizenship does not run afoul of the Uniform Rule of Naturalization
Clause of Article I. Although the Constitution grants Congress the power to
establish “uniform” immigration rules, U.S. Const. art. I, § 8, cl. 4, “uniformity”
refers to geography rather than time. Samras v. United States, 125 F.2d 879, 881
(9th Cir. 1942).
Nor does the application of different residency requirements violate equal
protection under the Fifth Amendment Due Process Clause. Pursuant to
Congress’s plenary power to establish immigration rules, a naturalization scheme
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satisfies due process if a “‘facially legitimate and bona fide reason’ supports the
distinction made by the statute.” Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th
Cir. 2003) (quoting Fiallo v. Bell, 430 U.S. 787, 794 (1977)). The distinction must
be rationally related to a legitimate government interest, and the legitimate interest
need only be conceivable. Ablang v. Reno, 52 F.3d 801, 804–05 (9th Cir. 1995).
Because Congress has a legitimate interest in regulating the number of aliens
eligible for derivative citizenship, and because the prospective application of more
lenient requirements is a rational means of promoting that interest, the
nonretroactivity of the amended residency requirements does not violate due
process.
AFFIRMED.
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