                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4085


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE EDUARDO LOPEZ-PADILLA, a/k/a Jose Padilla Lopez, a/k/a
Jose Lopez-Navarro, a/k/a Jose Naun Lopez Padilla, a/k/a
Jose Navarro Lopez, a/k/a Jose Padilla Navarro,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00035-MR-DLH-1)


Submitted:   October 9, 2013                 Decided:   October 22, 2013


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, William M. Miller, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jose   Eduardo     Lopez-Padilla      appeals    his    conviction

after a conditional guilty plea to illegal reentry of a deported

alien in violation of 8 U.S.C. § 1326(a) (2006).               On appeal, he

contends that the district court erred in prohibiting him from

presenting a defense of necessity to the charge.             We affirm.

            “[A] defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient

for a reasonable jury to find in his favor.”                United States v.

Ricks, 573 F.3d 198, 200 (4th Cir. 2009) (citation and internal

quotation marks omitted).          The defendant bears the burden of

proving     an   affirmative   defense    by   a    preponderance     of    the

evidence.    Dixon v. United States, 548 U.S. 1, 17 (2006).

            Where there is insufficient evidence to support any

element of an affirmative defense, a district court may preclude

a defendant from presenting evidence of the defense at trial and

may refuse to instruct the jury on the defense.                United States

v. Bailey, 444 U.S. 394, 415-16 (1980); United States v. Sarno,

24 F.3d 618, 621 (4th Cir. 1994).         A district court’s refusal to

instruct the jury on a defense presents a question of law that

we review de novo.      Ricks, 573 F.3d at 200 (citation omitted).

            We   have   reviewed   the   record    and   conclude    that   the

district court did not err in prohibiting Lopez-Padilla from

presenting his defense of necessity to the jury based on the

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proffered evidence.            Even assuming that Congress contemplated

the   defense   when    it     enacted    8    U.S.C.     § 1326(a),       see   United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490-91

(2001);    United     States    v.   Gore,     592   F.3d    489,    492    (4th    Cir.

2010), the proffered evidence was insufficient as a matter of

law for a reasonable jury to find in his favor on all of the

elements of the defense, see Bailey, 444 U.S. at 410-15; United

States v. Cassidy, 616 F.2d 101, 102 (4th Cir. 1979).

            We therefore affirm the district court’s judgment.                       We

dispense    with      oral     argument       because     the     facts    and     legal

contentions     are    adequately     presented      in     the   materials      before

this court and argument would not aid the decisional process.



                                                                             AFFIRMED




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