                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 02 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10009

              Plaintiff - Appellee,              D.C. No. 3:13-CR-0085-HDM-
                                                 VPC-1
  v.
                                                 MEMORANDUM*
EFRAIN IBARRA-FLORES, AKA Efrain
Ibarra, AKA Efrain Ivarra-Flores,

              Defendant - Appellant.


                 Appeal from the United States District Court
                          for the District of Nevada
              Howard D. McKibben, Senior District Judge, Presiding

                         Submitted November 20, 2014**
                            San Francisco, California

Before: FERNANDEZ and IKUTA, Circuit Judges, and ALBRITTON, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **   The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable William H. Albritton, III, Senior District Judge for the
U.S. District Court for the Middle District of Alabama, sitting by designation.
       Efrain Ibarra-Flores (“Ibarra-Flores”) appeals from his conviction of being

an alien who had been excluded, deported, or removed from the United States and

thereafter enters, attempts to enter, or is found in the United States in violation of 8

U.S.C. §1326(a).

      At trial, Ibarra-Flores requested that the trial court instruct the jury that an

alien is a person who is not a natural-born, naturalized, or derivative citizen, and

that derivative citizenship means citizenship derived from that of another, such as a

parent. The district court denied the request, relying on United States v. Espinoza-

Baza, 647 F.3d 1182, 1192 (9th Cir. 2011) (holding that a suggestion of

uncertainty as to the defendant’s mother’s citizenship was not sufficient to put the

derivative citizenship defense at issue so as to warrant an instruction on that

theory).

      A criminal defendant has a right to have the jury instructed according to his

theory of the case, provided that the requested instruction is supported by law and

has some foundation in the evidence presented at trial. United States v.

Bello–Bahena, 411 F.3d 1083, 1088–89 (9th Cir. 2005). We review de novo

whether an instruction is supported by law. See United States v. Castagana, 604

F.3d 1160, 1163 n. 2 (9th Cir. 2010). Whether it “has some foundation in the

evidence” is reviewed for an abuse of discretion. See United States v. Daane, 475


                                          -2-
F.3d 1114, 1119 (9th Cir. 2007).

      While the test for whether a proposed instruction has an adequate

evidentiary foundation is somewhat generous, the trial record must still contain

"evidence upon which the jury could rationally find for the defendant." Espinoza-

Baza, 647 F.3d at 1191 (citation omitted). Therefore, a defendant must present

more than a mere "scintilla of evidence" of derivative citizenship to warrant a

defense instruction on that theory. Id.

      The evidence of citizenship at Ibarra-Flores’s trial consisted of

Ibarra-Flores’s statements to immigration officials that he and his parents were

citizens of Mexico. We conclude that the district court did not abuse its discretion

in finding that the derivative citizenship theory was not sufficiently supported by

evidence at trial for the jury to be instructed as to that theory.

      Accordingly, Ibarra-Flores’s conviction is AFFIRMED.




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