UNITED STATES v. REYES RODRIGUEZ (2021)

United States Court of Appeals, Ninth Circuit.2021-06-29No. No. 19-10422, No. 19-10423

Summary · law.co

Holding. The court affirmed the conviction and sentence, finding no plain error in refusing a derivative citizenship instruction and no abuse of discretion in denying a sentencing reduction for acceptance of responsibility.

Cristobal Reyes-Rodriguez was convicted of illegally reentering the United States after prior removal, in violation of federal law. He appealed on two grounds: first, that the trial court should have instructed the jury about derivative citizenship (a defense available if he had become a U.S. citizen through his father's naturalization), and second, that he deserved a sentencing reduction for accepting responsibility. The appellate court rejected both arguments, finding that Reyes-Rodriguez himself testified he was not a citizen and provided no evidence supporting a derivative citizenship claim, and that his acceptance of responsibility came too late after he had forced the government to prove its case at trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether trial court must instruct jury on derivative citizenship defense when defendant provides only minimal evidence
Whether post-trial acceptance of responsibility qualifies for sentencing reduction when defendant contested guilt at trial
Illegal reentry by previously removed alien

Procedural posture

Reyes-Rodriguez appealed his jury conviction and sentence for illegal reentry as a removed alien to the federal appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM *

Cristobal Reyes-Rodriguez appeals his jury conviction and sentence for reentry as a removed alien in violation of 8 U.S.C. § 1326. Reyes-Rodriguez was previously convicted of multiple felonies and twice removed from the United States. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Reyes-Rodriguez claims that the district court committed plain error by failing to offer a sua sponte instruction to the jury on derivative citizenship. See 8 U.S.C. § 1401(g). A citizen of the United States is not an alien and therefore cannot be convicted of illegal reentry under 8 U.S.C. § 1326. 8 U.S.C. § 1101(a)(3); United States v. Sandoval-Gonzalez, 642 F.3d 717, 721–22 (9th Cir. 2011). At trial, however, Reyes-Rodriguez himself stated that he was not a citizen of the United States upon questioning by his counsel. While Reyes-Rodriguez did testify that his father had become a naturalized U.S. citizen, he did not offer any evidence about his age at the time of his fathers naturalization or any other information relevant to the derivative citizenship inquiry. The district court therefore did not commit plain error by failing to instruct the jury on derivative citizenship. See United States v. Espinoza-Baza, 647 F.3d 1182, 1192–93 (9th Cir. 2011) (holding that no jury instruction required when “the trial record contains nothing more than a mere scintilla of evidence of derivative citizenship”).

Reyes-Rodriguez also claims that the district court erred by refusing to grant him a two-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). As the Application Notes explain, this reduction is generally “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. 2. The district court appropriately found that Reyes-Rodriguezs brief post-trial statement to the court was untimely and did not merit departure from this general rule.

AFFIRMED.