                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 05-50892
                Plaintiff-Appellee,
               v.                                   D.C. No.
                                                 CR-04-02255-MLH
RAFAEL CRUZ-ESCOTO,
                                                     OPINION
             Defendant-Appellant.
                                            
         Appeal from the United States District Court
           for the Southern District of California
          Marilyn L. Huff, District Judge, Presiding

                    Argued and Submitted
            October 24, 2006—Pasadena, California

                      Filed February 23, 2007

   Before: Eugene E. Siler, Jr.,* A. Wallace Tashima, and
              Carlos T. Bea, Circuit Judges.

                     Opinion by Judge Siler;
                    Dissent by Judge Tashima




   *The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.

                                  2047
               UNITED STATES v. CRUZ-ESCOTO           2051


                        COUNSEL

Martha M. Hall, San Diego, California, for the defendant-
appellant.

Carol C. Lam, United States Attorney, Roger W. Haines,
Assistant United States Attorney, Mark R. Rehe, Assistant
United States Attorney, San Diego, California, for the
plaintiff-appellee.


                        OPINION

SILER, Circuit Judge:

   Rafael Cruz-Escoto appeals his jury conviction and sen-
tence for being a deported alien found in the United States
2052               UNITED STATES v. CRUZ-ESCOTO
without permission, in violation of 8 U.S.C. § 1326. He pre-
sents six arguments on appeal: (1) the evidence was insuffi-
cient to support the verdict; (2) the district court improperly
instructed the jury; (3) the district court violated his Fifth and
Sixth Amendment rights by excluding the testimony of an
impeachment witness; (4) the introduction of evidence that he
twice illegally entered the United States violated Federal
Rules of Evidence 401, 403, and 404(b); (5) the government
violated Batson v. Kentucky, 476 U.S. 79 (1986); and (6) the
district court impermissibly increased his sentence above the
statutory maximum. We AFFIRM.

                        I.   BACKGROUND

   In 2004, Border Patrol Agent Jason Viau conducted sur-
veillance of an area along the Mexico-United States border
known as the “Channel.” The Channel, located in California
just north of Tijuana, is a cement river bed that runs north
from Mexico into the United States, where it eventually emp-
ties into the Pacific Ocean. There are no fences where the
Channel enters into the United States;1 however, a painted
yellow line on the bottom of the Channel marks the interna-
tional border. The Border Patrol has a permanent post located
at this vulnerable section of the Channel. This permanent post
is not a designated port of entry, and consists of a uniformed
agent in a marked car who conducts a twenty-four hour sur-
veillance of the area, which is illuminated by large lights.2
  1
     While there are no fences at the point where the Channel enters into
the United States, there are two fences located along other areas of the
southern bank. The fences run parallel to each other, separated by only
twenty to thirty yards. The first fence is made of steel and is approxi-
mately eight feet tall. The second fence is a cement fence, known as the
“Ballard fence,” nearly fifteen feet tall.
   2
     The agent station at the permanent post guards not only the fence gap
in the Channel, but also other fenced areas in the Channel. These areas are
an attractive point of entry for undocumented aliens because even though
they are fenced, they are not as well-lit as the gap in the Channel.
                 UNITED STATES v. CRUZ-ESCOTO              2053
   During his midnight shift, Agent Viau saw Cruz-Escoto
running northbound in the Channel in front of the Ballard
Fence, approximately 100-150 yards inside the United States.
Agent Viau drove his Jeep into the Channel and, after a brief
scuffle, arrested Cruz-Escoto. Cruz-Escoto admitted to Agent
Viau that he was a citizen of Mexico and did not have proper
documentation to permit him to enter the United States. He
was subsequently indicted for being a deported alien found in
the United States, in violation of 8 U.S.C. § 1326.

   At trial, Agent Viau testified that he did not see Cruz-
Escoto cross the border and could not say how or where Cruz-
Escoto entered the United States. The government also intro-
duced evidence that Cruz-Escoto had twice been removed
from the United States and that he had never applied for per-
mission to re-enter. Cruz-Escoto was convicted of violating
§ 1326.

   At Cruz-Escoto’s sentencing hearing, the district court
increased his sentence above the two-year statutory maximum
to eighty-four months because it found that he had previously
been deported following a felony conviction.

               II.   STANDARD OF REVIEW

   Claims of insufficient evidence are reviewed de novo.
United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999).
Whether jury instructions adequately cover the theory of the
defense is reviewed de novo as well. United States v. Fejes,
232 F.3d 696, 702 (9th Cir. 2000). Whether particular evi-
dence falls within the scope of a rule of evidence is also
reviewed de novo. United States v. Smith, 282 F.3d 758, 768
(9th Cir. 2002). A district court’s decision to admit or exclude
evidence is reviewed for an abuse of discretion. United States
v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999). The district
court’s findings regarding purposeful discrimination in jury
selection are findings of facts entitled to great deference and
will be set aside only if clearly erroneous. United States v.
2054             UNITED STATES v. CRUZ-ESCOTO
Power, 881 F.2d 733, 739 (9th Cir. 1989). Claims that a
defendant’s sentence violates Apprendi v. New Jersey, 530
U.S. 466 (2000), are reviewed de novo. Smith, 282 F.3d at
771.

                     III.   DISCUSSION

               A.   Sufficiency of the Evidence

   Cruz-Escoto’s first argument is that the evidence was insuf-
ficient to find him guilty of violating § 1326. Specifically, he
argues that he was never free from official restraint because
he was apprehended before he passed Agent Viau’s perma-
nent post.

   [1] To prove a violation of § 1326, the prosecution must
show that a deported alien entered, attempted to enter, or was
found in, the United States without official permission of the
government. See 8 U.S.C. § 1326. Physical presence alone is
insufficient to sustain a conviction of being “found in” the
United States. See, e.g., United States v. Gonzalez-Torres, 309
F.3d 594, 598 (9th Cir. 2002); United States v. Pacheco-
Medina, 212 F.3d 1162, 1163-64 (9th Cir. 2000). The govern-
ment must also prove that the individual “entered the United
States free from official restraint at the time officials discov-
ered or apprehended him.” United States v. Ruiz-Lopez, 234
F.3d 445, 448 (9th Cir. 2000). “The burden is on the govern-
ment to establish lack of official restraint.” United States v.
Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005).

   [2] “An alien is under ‘official restraint’ if, after crossing
the border without authorization, he is ‘deprived of [his] lib-
erty and prevented from going at large within the United
States.’ ” Gonzalez-Torres, 309 F.3d at 598 (alteration in orig-
inal) (quoting United States v. Pacheco-Medina, 212 F.3d
1162, 1164 (9th Cir. 2000)). Because the concept of official
restraint is interpreted broadly, an alien need not be in physi-
cal custody of authorities to be officially restrained. See Ruiz-
                 UNITED STATES v. CRUZ-ESCOTO                2055
Lopez, 234 F.3d at 448. “[T]he restraint may take the form of
surveillance, unbeknownst to the alien . . . .” Id. (alteration in
original) (quoting Pacheco-Medina, 212 F.3d at 1164).

   [3] Whether an alien crosses the border at a designated
point of entry or elsewhere also weighs on the consideration
of official restraint. “An alien who crosses the border at a des-
ignated location and proceeds directly in the manner desig-
nated by the government to the border station where he then
presents himself to the authorities has not [yet] been ‘found
in’ the United States . . . .” United States v. Zavala-Mendez,
411 F.3d 1116, 1121 (9th Cir. 2005). Aliens who climb
fences, raft canals, “or otherwise sneak[ ] across the border in
some illegitimate manner,” id. at 1120, are under official
restraint only if they are under constant governmental obser-
vation “from the moment [they] set foot in this country until
the moment of [their] arrest.” United States v. Castellanos-
Garcia, 270 F.3d 773, 775 (9th Cir. 2001).

   [4] Another rule applies to this latter class of aliens: those
who evade government observation while crossing the border
are deemed to be free from official restraint, regardless of the
distance they travel between entry and arrest. See Bello-
Bahena, 411 F.3d at 1087-88 (no official restraint when
defendant first observed after he crossed the border);
Castellanos-Garcia, 270 F.3d at 774-75 (no official restraint
even though defendant captured only 100 yards beyond bor-
der because Border Patrol agent did not see defendant cross
the border). The rule of these cases is that the distance trav-
eled between entry and apprehension is not determinative;
rather, the focus is on whether the alien is able to exercise his
free will once he has entered this country.

   Cruz-Escoto contends that he was never free from official
restraint because although he crossed the border, he never
made it past the permanent post. He argues that this perma-
nent post is analogous to a designated point of entry because
“unless the person succeeds in getting past this post, that per-
2056             UNITED STATES v. CRUZ-ESCOTO
son has not successfully and freely entered the United States.”
Therefore, he reasons, this case falls between the port of entry
cases and the other “sneaky entry” cases.

   Despite his attempt to portray this case as falling between
a port of entry case and a surreptitious entry case, we have
never established a middle ground. In Zavala-Mendez, we
specifically noted only two lines of authority for “found in”
cases: the first where aliens present themselves at designated
points of entry, and the second where aliens enter surrepti-
tiously. Zavala-Mendez, 411 F.3d at 1118. Here, analysis
under the designated point of entry cases is inappropriate
because Cruz-Escoto neither entered at a designated point of
entry nor proceeded in a manner designated by the United
States government.

   Although the geography involved in this case presents a
unique situation, the jury heard sufficient evidence to decide
that Cruz-Escoto was free from official restraint. Agent
Viau’s testimony that he never saw Cruz-Escoto cross the
border is significant, but not dispositive, in our inquiry. Under
our “surreptitious entry” precedent, his arrest only 100-150
yards from the border is of no consequence since the distance
traveled once inside the United States is not the ultimate con-
sideration. See, e.g., Bello-Bahena, 411 F.3d at 1087; United
States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2005);
Castellanos-Garcia, 270 F.3d at 775. Rather, whether Cruz-
Escoto could exercise his free will once inside the United
States is the focus of our analysis.

   [5] A complicating fact in this case is that the geography
of the Channel might prevent someone crossing the border
from exercising his own free will inside the United States
until he passes the permanent post. However, we need not
consider that situation here, because there was no evidence
that Cruz-Escoto did, in fact, cross the border immediately
preceding his arrest. Because he did not testify, the jury might
well have determined that Cruz-Escoto was already in this
                 UNITED STATES v. CRUZ-ESCOTO                 2057
country and had the ability to exercise his free will inside the
United States. We are simply unable to say that there was
insufficient evidence for a rational jury to conclude that Cruz-
Escoto was free from official restraint.

            B.   Adequacy of the Jury Instructions

   Cruz-Escoto’s next argument is that the district court erred
when: (1) it failed to give his proposed jury instruction with
respect to official restraint; and (2) it instructed the jury based
on an erroneous reading of the law.

   [6] “A defendant is entitled to have the judge instruct the
jury on his theory of the defense, provided that it is supported
by law and has some foundation in the evidence.” United
States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). An
instruction is proper “ ‘even though the evidence may be
weak, insufficient, inconsistent, or of doubtful credibility.’ ”
United States v. Sotelo-Murillo, 887 F.2d 176, 178 (9th Cir.
1989) (quoting United States v. Yarbrough, 852 F.2d 1522,
1541 (9th Cir. 1988), cert. denied, 488 U.S. 866 (1988)).

   The instructions given to the jury mostly coincided with
Cruz-Escoto’s proposed instructions. However, the last line of
one of Cruz-Escoto’s proposed instructions was not included
in the final jury instructions:

    Furthermore, when an alien attempts to enter the
    United States, the mere fact that he may have eluded
    the gaze of law enforcement, or eluded arrest, for a
    brief period of time after having come upon United
    States territory is insufficient, in and of itself, to
    establish “freedom from official restraint.”

Rather, the district court instructed the jury:

    If an alien is under constant surveillance by immi-
    gration officers when he entered the United States
2058             UNITED STATES v. CRUZ-ESCOTO
    and the entire time he is inside the United States, he
    may not be free from official restraint. On the other
    hand, if an immigration official did not see the
    Defendant cross into the United States, then the
    Defendant would not be under official restraint.

   [7] Cruz-Escoto’s first assignment of error is the district
court’s refusal to give the last line of his proposed instruction.
While his proposed instruction is an accurate statement of the
law, see, e.g., Gonzalez-Torres, 309 F.3d at 598, Pacheco-
Medina, 212 F.3d at 1163-64, it is inapplicable to this case.
There was never a question of whether the government sur-
veillance amounted to constructive official restraint resulting
from brief periods of interruption. Apparently, Cruz-Escoto
believes that because a period of time elapsed from the
moment he crossed the border until he was first detected, this
case is similar to the “interruption” cases such as Gonzalez-
Torres and Pacheco-Medina. However, the rule of those cases
applies only where the defendant was observed crossing the
border. The rule is inapplicable in this case because Cruz-
Escoto was not seen crossing the border.

   It is for this reason that Cruz-Escoto’s second assignment
of error is also incorrect. He argues that the last sentence of
the final jury instructions misstates the law because it contra-
dicts Pacheco-Medina and its progeny, including Ruiz-Lopez.
However, nothing in Pacheco-Medina or subsequent cases
has changed the settled rule that if an alien sneaks across the
border undetected, he is generally deemed to be free from
official restraint regardless of the distance he travels in the
United States. See Bello-Bahena, 411 F.3d at 1087-88;
Castellanos-Garcia, 270 F.3d at 775-76.

   His contention that Ruiz-Lopez is a case where the defen-
dant was not observed crossing the border is misguided.
Although the immigration officer in that case could not spe-
cifically recall observing the defendant cross the border, his
general practice of closely monitoring the border and immedi-
                 UNITED STATES v. CRUZ-ESCOTO               2059
ately interviewing suspected illegal aliens provided sufficient
testimony of habitual practice to permit the inference that the
defendant was monitored while crossing the border. Ruiz-
Lopez, 234 F.3d at 448-49.

            C.   Exclusion of Opinion Testimony

  Cruz-Escoto argues that the district court violated his Fifth
and Sixth Amendment rights when it excluded the testimony
of a defense witness that would have impeached the govern-
ment’s central witness.

   [8] The Constitution provides an accused with “a meaning-
ful opportunity to introduce relevant evidence on his behalf.”
Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005);
see also Crane v. Kentucky, 476 U.S. 683, 690 (1986). How-
ever, “a trial judge may exclude or limit evidence to prevent
excessive consumption of time, undue prejudice, confusion of
the issues, or misleading the jury.” Menendez, 422 F.3d at
1033. In considering whether the exclusion of evidence vio-
lates due process, this court considers “the probative value of
the evidence on the central issue . . . .” Miller v. Stagner, 757
F.2d 988, 994 (9th Cir. 1985).

   Cruz-Escoto sought to impeach Agent Viau’s testimony
that his vehicle was facing south, but that he was continually
looking west. He argues that this testimony enabled the gov-
ernment to argue that Agent Viau did not see Cruz-Escoto
cross the border and therefore was never free from “official
restraint” because he was not continually under surveillance.

   Cruz-Escoto attempted to introduce testimony of Robert
Castillo, a defense witness trained in surveillance. Cruz-
Escoto’s counsel proffered that Castillo “would testify that,
when you’re doing surveillance, it’s very difficult to have
your vehicle pointed in one direction and then to constantly
be looking in another, which was essentially the testimony of
the agent.” Thus, Cruz-Escoto argues, Agent Viau must have
2060             UNITED STATES v. CRUZ-ESCOTO
been looking toward the gap in the border fences, which was
the direction his vehicle was pointing, and he must have seen
Cruz-Escoto cross the border.

   [9] The district court did not violate Cruz-Escoto’s Fifth or
Sixth Amendment rights by excluding Castillo’s testimony.
The court decided that the evidence was irrelevant because it
was within the understanding of a common juror. See Fed. R.
Evid. 702. Moreover, this ruling was not an abuse of discre-
tion under Fed. R. Evid. 403.

              D.   Evidence of Prior Removals

  Cruz-Escoto’s next argument is that the district court
improperly admitted evidence of his previous illegal entries
and removals. He argues that this evidence violates Federal
Rules of Evidence 401, 403, and 404(b).

   [10] While Rule 404(b) does prohibit the admission of
“other crimes, wrongs, or acts” to prove the propensity of a
defendant, evidence that is a necessary element of the crime
charged is not considered “[e]vidence of other crimes, wrong,
or acts” within the meaning of the Rule. United States v.
Campbell, 774 F.2d 354, 356 (9th Cir. 1985) (alteration in
original) (qutoing Fed. R. Evid. 404(b)). Therefore, evidence
showing that Cruz-Escoto had previously been deported is not
Rule 404(b) evidence because the government had to prove
this element of the crime. See 8 U.S.C. § 1326(a)(1).

   [11] Cruz-Escoto argues that the government’s use of mul-
tiple prior deportations, when proof of only one was neces-
sary, constitutes reversible error. We find no error in
permitting this evidence because in other contexts we have
permitted the introduction of more than one predicate act to
establish an element of the crime. See United States v. Wei-
land, 420 F.3d 1062, 1078 (9th Cir. 2005) (finding harmless
error in the use of four prior felony convictions to establish
                UNITED STATES v. CRUZ-ESCOTO              2061
defendant’s status as a felon under 18 U.S.C. § 922(g)(1)),
cert. denied, 126 S. Ct. 1911 (2006).

   Moreover, the district court gave two limiting instructions
to minimize the potential prejudice. See United States v. Bas-
inger, 60 F.3d 1400, 1408 (9th Cir. 1995). The first limiting
instruction informed the jury that it could only use the 2000
deportation to show citizenship, absence of mistake or acci-
dent, and for deportation, which was an element of the
offense. The second limiting instruction was given after clos-
ing arguments and informed the jury again of the limited pur-
pose of the “other acts” evidence.

                   E.   Batson Allegations

   Cruz-Escoto contends that the government violated the
Equal Protection Clause because it impermissibly used
peremptory challenges to exclude two Hispanic potential
jurors.

   [12] The Fourteenth Amendment prohibits racial discrimi-
nation in the jury selection process. See Batson v. Kentucky,
476 U.S. 79 (1986). A defendant who objects to the use of
peremptory challenges carries the burden of establishing a
prima facie showing of unconstitutional discrimination. Id. at
93-96. To make such a showing, the defendant must first
show that: (1) he is a member of a cognizable racial group;
(2) the government used peremptory challenges to remove
members of that racial group; and (3) the “facts and any other
relevant circumstances raise an inference” that the peremptory
challenge was motivated by an impermissible factor, such as
race. Id. at 96.

   [13] If a defendant makes a prima facie showing of dis-
crimination, the burden shifts to the government to offer race-
neutral reasons for exclusion of a particular race. Id. at 94.
“The prosecutor’s explanation, to satisfy Batson, need only be
facially valid, it need not be persuasive or even plausible so
2062                UNITED STATES v. CRUZ-ESCOTO
long as it is race-neutral.” United States v. Gillam, 1678 F.3d
1273, 1278 (9th Cir. 1999); see also Purkett v. Elem, 514 U.S.
765, 767-68 (1999) (per curiam). Finally, “[i]f a race-neutral
explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful
racial discrimination.” Purkett, 514 U.S. at 767.

   The government contends that Cruz-Escoto did not make a
prima facie showing of discrimination because he failed to
produce any facts or other relevant circumstances that could
raise an inference of impermissible discrimination. In his
objection, Cruz-Escoto stated that “[t]here are two hispanics
who were stricken by the government, number 23 and 24,”
and that “I don’t think that’s the reason they struck her.” The
government argues that this is insufficient to establish a prima
facie showing. However, the district court requested and
accepted the government’s reasons for excluding the two His-
panic jurors. Thus, the issue of whether Cruz-Escoto made a
prima facie showing of discrimination is moot. See Kesser v.
Cambra, 465 F.3d 351, 381 (9th Cir. 2006) (“ ‘[O]nce a pros-
ecutor has offered a race-neutral explanation for the peremp-
tory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of
whether the defendant has made a prima facie showing
becomes moot.’ ” (quoting Hernandez v. New York, 500 U.S.
352, 359 (1991) (plurality opinion)).

   [14] Assuming, as the district court did, that Cruz-Escoto
made a prima facie showing of discrimination, his claim still
fails because the government articulated a valid, race-neutral
justification for excluding the potential jurors. The govern-
ment rationalized excluding the two Hispanic jurors because
they — or their sons, depending on which version of tran-
script is accurate3 — were unemployed. Cruz-Escoto argues
  3
    The government alleges, and Cruz-Escoto does not contest, that there
is an error in the trial transcript. The transcript reflects the government’s
race-neutral justification as: “On 24, the same as 23. Her sons are both
                    UNITED STATES v. CRUZ-ESCOTO                      2063
that this reason is insufficient to rebut a prima facie Batson
showing. However, our precedent contradicts this contention.
See Gillam, 167 F.3d at 1278 (finding that unemployment for
one year was a race-neutral explanation).

   [15] Moreover, ample evidence supports the district court’s
conclusion that Cruz-Escoto did not establish purposeful
racial discrimination. The seated jury included two Hispanics
who were not struck by the government. See Turner v. Mar-
shall, 121 F.3d 1248, 1254 (9th Cir. 1997) (finding fact that
jury included minorities to be indicative, but not dispositive,
of nondiscriminatory motive); United States v. Chinchilla,
874 F.2d 695, 698 n.4 (9th Cir. 1989) (noting that “the will-
ingness of a prosecutor to accept minority jurors weighs
against the findings of a prima facie case”). Also, the chal-
lenges at issue only constituted two of the government’s six
peremptory challenges. See United States v. Vasquez-Lopez,
22 F.3d 900, 902 (9th Cir. 1994) (considering that the “gov-
ernment’s other peremptory challenges did not suggest a gen-
eral pattern of discrimination against racial minorities” in the
Batson analysis). Finally, the defense also struck one of the
two jurors in dispute.

               F.   Apprendi Challenge to Sentence

    Cruz-Escoto’s final claim is that the district court improp-
erly increased his sentence above the statutory maximum.
Pursuant to 8 U.S.C. § 1326(b)(2), the district court sentenced
Cruz-Escoto above the two-year statutory maximum because
it found that he had previously been convicted of two felonies
— a 1994 drug trafficking charge and a 1996 sale of cocaine

employed — I assume only one is at issue.” The government contends that
based on its review of the official recording, the prosecutor stated “The
reason is they’re both unemployed.” As the government points out, this
likely seems to be an error because neither juror referred to any “sons” and
the two phrases do sound similar. The government also alleges that the
“employed/unemployed” difference in the transcript is error as well.
2064             UNITED STATES v. CRUZ-ESCOTO
charge. According to Cruz-Escoto, this increase violates the
Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S.
466 (2000), because he did not admit that he had previously
been convicted nor did the jury make such a finding.

   [16] Any fact that increases a sentence above the statutory
maximum must be admitted by the defendant or proved to a
jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490.
However, Cruz-Escoto’s argument fails because Apprendi
specifically exempts recidivism enhancements based on prior
convictions from its holding. Id. at 490 (“Other than the fact
of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
(emphasis added)).

   Cruz-Escoto’s contention that Almendarez-Torres v. United
States, 523 U.S. 224 (1998), requires a defendant’s admission
of prior conviction to trigger a § 1326 recidivism enhance-
ment is contrary to both the history of the recidivism enhance-
ment and our precedent. See id. at 227 (noting that recidivism
“is a traditional, if not the most traditional, basis for a sen-
tencing court’s increasing an offender’s sentence”); United
States v. Yanez-Saucedo, 295 F.3d 991, 993 (9th Cir. 2002)
(“[N]owhere does Apprendi limit Almendarez-Torres to cases
where a defendant admits prior aggravated felony convictions
on the record.”) (quotation and citation omitted).

   [17] Moreover, we have repeatedly upheld statutory maxi-
mum increases based on the same recidivism enhancement in
this case. See, e.g., United States v. Cortez-Arias, 403 F.3d
1111, 1114 n.8 (9th Cir. 2005).

  AFFIRMED.
                 UNITED STATES v. CRUZ-ESCOTO                2065
TASHIMA, Circuit Judge, dissenting:

   I respectfully dissent from Part III.B of the majority opin-
ion and from the judgment. Part III.B rejects Cruz-Escoto’s
contention that the jury instructions inadequately covered his
theory of the defense. The majority misconstrues our cases
and, consequently, interprets the doctrine of “official
restraint” far too narrowly. Although the majority acknowl-
edges in Part III.A that “the geography of the Channel might
prevent someone crossing the border from exercising his own
free will inside the United States until he passes the perma-
nent post,” Maj. Op. at 2056, inexplicably, it ignores this pos-
sibility in its discussion of Cruz-Escoto’s requested jury
instructions. The jury instructions requested by Cruz-Escoto
would have allowed the jury to consider his theory that the
“geography of the Channel,” including the permanent Border
Patrol post, placed him under official restraint, even if he was
not seen crossing the border. But the jury instructions actually
given foreclosed consideration of Cruz-Escoto’s theory of the
case.

   “It is settled law that a defendant is entitled to have the
judge instruct the jury on his theory of the case, provided that
it is supported by law and has some foundation in the evi-
dence. A failure to instruct a jury upon a legally and factually
cognizable defense is not subject to harmless error analysis.”
United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir. 1995)
(citations, internal quotation marks, and brackets omitted).

   Cruz-Escoto requested a jury instruction stating that,
“[W]hen an alien attempts to enter the United States, the mere
fact that he may have eluded the gaze of law enforcement, or
eluded arrest, for a brief period of time after having come
upon United States territory is insufficient, in and of itself, to
establish ‘freedom from official restraint.’ ” The district court
rejected this proposed instruction and gave the following
instruction in its place: “If an alien is under constant surveil-
lance by immigration officers when he entered the United
2066             UNITED STATES v. CRUZ-ESCOTO
States and the entire time he is inside the United States, he
may not be free from official restraint. On the other hand, if
an immigration official did not see the Defendant cross into
the United States, then the Defendant would not be under offi-
cial restraint.”

   The court’s instruction precluded the jury from considering
Cruz-Escoto’s theory of the defense, if the jurors credited the
agent’s testimony that he did not see Cruz-Escoto cross the
international border. Cruz-Escoto had argued that because of
the configuration of the Channel and the fact that a Border
Patrol agent is permanently stationed there to monitor the
Channel, “unless the person [attempting entry] succeeds in
getting past this [Border Patrol] post, that person has not suc-
cessfully and freely entered the United States . . . . The mere
fact that the border patrol agent at his post did not see the
actual crossing of the line or the fence is not dispositive in this
case . . . .”

   Contrary to the majority, I conclude that Cruz-Escoto’s the-
ory of the defense accurately represents the law regarding
freedom from official restraint. Even if the Border Patrol
agent did not see Cruz-Escoto cross the border, the configura-
tion of the Channel and the permanent Border Patrol post at
that location placed Cruz-Escoto under official restraint from
the moment he crossed into the United States until he was
apprehended. Therefore, Cruz-Escoto was entitled to have the
jury consider his theory.

   I disagree with the majority’s assertion that, under our
jurisprudence, official restraint requires that a government
official actually witness the alien crossing the international
boundary line, if the crossing occurs away from an official
port of entry. The majority derives this rule from the fact that
in other Ninth Circuit cases dealing with official restraint of
aliens “sneaking across” the border, the aliens were observed
in the act of crossing. See Maj. Op. at 2055 (citing United
States v. Bello-Bahena, 411 F.3d 1083 (9th Cir. 2005), and
                 UNITED STATES v. CRUZ-ESCOTO                2067
United States v. Castellanos-Garcia, 270 F.3d 773 (9th Cir.
2001)).

   But the concept of official restraint that underlies our offi-
cial restraint case law is not so limited. The idea that an alien
has not successfully entered the country until he is free from
official restraint is rooted in the notion that an alien who is in
constructive government custody at all times has not really
“made it in” to the United States.

   We first adopted the notion that entry requires “physical
presence . . . accompanied by freedom from official restraint”
in United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974)
(citing United States v. Vasilatos, 209 F.2d 195 (3d Cir.
1954); In re Dubbiosi, 191 F. Supp. 65 (E.D. Va. 1961)). In
Oscar, two aliens who attempted to enter by lying to inspec-
tors at a port of entry, claiming that they were U.S. citizens,
had not committed the crime of illegal entry because they
were “never free from the official restraint of the customs
officials at the San Ysidro Port of Entry.” 496 F.2d at 493. In
United States v. Aguilar, 883 F.2d 662, 681-82 (9th Cir.
1989), we affirmed that “surveillance prior to an arrest is offi-
cial restraint because the alien ‘lacks the freedom to go at
large and mix with the population.’ ” (quoting Matter of
Pierre, B.I.A. Interim Dec. No. 2239 (Oct. 5, 1973) (later
reported at 14 I. & N. Dec. 467 (B.I.A. 1973))). As we noted
in Aguilar, the concept of “official restraint” is premised on
“the theory that the alien is in the government’s constructive
custody at the time of physical entry.” 883 F.2d at 683. In
Aguilar, we held that the alien was not under continuous offi-
cial restraint because daily visits to her home by an under-
cover government agent over a period of months did not
amount to constructive custody over that entire period. Id.

   Thus, the touchstone of official restraint is whether the
alien was actually “free to go at large and mix with the popu-
lation.” Id. at 682. Because the concept is rooted in the notion
of constructive custody, the appropriate inquiry is whether the
2068                UNITED STATES v. CRUZ-ESCOTO
government retains effective control over the alien. Cf.
Black’s Law Dictionary 412, 1183 (8th ed. 2004) (defining
custody as “care and control of a thing or person for inspec-
tion, preservation, or security” and physical custody as
“[c]ustody of a person (such as an arrestee) whose freedom is
directly controlled and limited”). While it is true that our
cases find that even momentary freedom from government
control suffices to establish freedom from official restraint,
the controlling question remains whether “an alien is able to
exercise his free will subsequent to physical entry.” Aguilar,
883 F.2d at 683 (citing United States v. Martin-Plascencia,
532 F.2d 1316 (9th Cir. 1976)).

   In cases where the alien crosses the border away from a
port of entry, constructive government custody is usually
effected through government surveillance. That is the reason
that other Ninth Circuit cases dealing with surreptitious bor-
der crossings have involved aliens who are seen, either
directly or by video or other remote device, as they cross the
border. But there is no rule that the only means of achieving
official restraint over, or constructive custody of, an alien
crossing the border is through actual observation by govern-
ment officials.1

  At the area of the Channel where Cruz-Escoto was appre-
hended, the physical topography along with the degree of
  1
    The port of entry cases, while not controlling, also illustrate that the
key to official restraint is the criterion of government control over the
alien, not continuous government observation. Where an alien enters the
country at an official port of entry, whether at an airport or a land border,
the alien who follows government-designated procedures is not deemed
free from official restraint until she exits the customs inspection area,
because until then she is not “free to exit the [port of entry] and ‘go at
large and mix with the general population.’ ” Sidhu v. Ashcroft, 368 F.3d
1160, 1165 (9th Cir. 2004) (quoting Correa v. Thornburgh, 901 F.2d
1166, 1172 (2d Cir. 1990)); see also United States v. Zavala-Mendez, 411
F.3d 1116, 1120-21 (9th Cir. 2005) (relying on the idea that an alien who
presents herself at a border station is not “found in” the United States
within the meaning of 8 U.S.C. § 1326(a)).
                    UNITED STATES v. CRUZ-ESCOTO                       2069
government control exerted over the area created a construc-
tive custody situation — without any necessity that the agent
have actually watched Cruz-Escoto step over the painted
boundary line.2 The Channel is equivalent to a brightly lit,
high-walled corridor crossing the border, with a permanent
Border Patrol post at one end. It is fenced along both sides
once it enters the United States. Along the south bank,3 there
is double fencing, with an inner fence 15 feet in height and
an outer fence of eight feet; a high fence also runs along the
north bank. Stadium-style lighting illuminates the Channel at
night. An agent sits in a marked vehicle on the north bank of
the Channel monitoring the Channel 24 hours a day, seven
days a week. Thus, if Cruz-Escoto did cross the border by
moving north within the fenced interior of the Channel, he
was at all times within this highly-controlled, continuously-
monitored space. A jury could justifiably find that he was
under effective government restraint while in the United
States by virtue of the high fencing around him and the cons-
tant monitoring of the corridor by Border Patrol.4

   The unique physical configuration of the Channel distin-
guishes this case from cases such as Bello-Bahena and
Castellanos-Garcia, where we held that aliens discovered
only a short distance from the border could be deemed to have
entered “free from official restraint.” There was no indication
in those cases that the aliens’ freedom of movement had been
curtailed in any way. Bello-Bahena was found “hiding in
some brush” a mile from the border, 411 F.3d at 1086;
  2
     There is no border fence crossing the Channel but the international
boundary is marked by a yellow painted line across the cement bottom of
the Channel. When the Channel is dry, as it was at the time of Cruz-
Escoto’s crossing, the line is readily visible across the width of the Chan-
nel.
   3
     Immediately after the Channel enters the United States, it turns and
runs west toward the Pacific.
   4
     Thus, the Channel is the virtual equivalent of a tunnel under the border
with a Border Patrol agent stationed at the end of the tunnel as it emerges
on the U.S. side of the border.
2070             UNITED STATES v. CRUZ-ESCOTO
Castellanos-Garcia was discovered “walking north at least
100 yards from the border” after having scaled the border
fence, 270 F.3d at 774. The majority cites these cases for the
proposition that “those who evade government observation
while crossing the border are deemed to be free from official
restraint, regardless of the distance they travel between entry
and arrest.” Maj. Op. at 2055 (emphasis in the original).
Again, the majority has mistakenly fixated on the criterion of
government observation at the precise moment of crossing.
The aliens in those cases were not in a contained area, and
there was no indication that any form of government control
had been exerted over them from the time they crossed the
border until they were apprehended. Since they were found
some distance from the border, this was sufficient to show
that each had sufficient opportunity to “exercise his free will”
free of government control while within the United States.
However, Bello-Bahena and Castellanos-Garcia do not estab-
lish a general rule that actual government observation is the
only means of establishing official restraint over an alien who
crosses the border surreptitiously. What remains the control-
ling rule is whether the “alien is able to exercise his free will
subsequent to physical entry.” Aguilar, 883 F.2d at 683.

   This case also differs from cases where aliens, in the course
of attempting to evade official detection, found themselves in
natural environments from which escape was difficult, such as
a gorge or very thick brush. See United States v. Vela-Robles,
397 F.3d 786, 789 (9th Cir. 2005) (detection by seismic sen-
sor as alien entered natural gorge did not amount to observa-
tion or surveillance for purpose of showing official restraint
and alien was thus not in the “constant visual or physical
grasp of governmental authorities” after crossing border);
United States v. Hernandez-Herrera, 273 F.3d 1213, 1216,
1219 (9th Cir. 2001) (alien who was seen crossing the border,
but then fled into thick brush “from which there was no
escape,” was no longer under official restraint once he left
agents’ sight). The government control exercised over a natu-
ral gorge or an area of thick brush, even if agents are stationed
                    UNITED STATES v. CRUZ-ESCOTO                      2071
immediately outside waiting to catch anyone who emerges,
does not nearly approach the tunnel-like configuration of the
Channel, where a government agent continuously monitors a
fenced-in, well-lit space.

   Thus, our case law supports Cruz-Escoto’s theory of the
defense. Further, the evidence in this case supported his theory.5
The physical configuration of the Channel and the location of
the Border Patrol permanent post are undisputed. The agent
testified that he did not see Cruz-Escoto until he was 100-150
yards up the Channel, meaning that Cruz-Escoto could have
crossed the border either by traveling north within the fenced
interior of the Channel or by scaling the border fence at some
other point and later emerging into the Channel. If the former
occurred, for the reasons outlined above, Cruz-Escoto would
have been under official restraint the entire time that he was
in the United States. Because the evidence left both possibili-
ties open, there was a foundation in the evidence for Cruz-
Escoto’s theory and he was thus entitled to an instruction that
adequately covered the theory.6 Sarno, 73 F.3d at 1485. As
  5
     While recognizing that Cruz-Escoto’s requested instruction was a cor-
rect statement of the law, the majority states that there was no foundation
for it here because “[t]here was never a question of whether the govern-
ment surveillance amounted to constructive official restraint resulting
from brief periods of interruption.” Cruz-Escoto’s theory, however, relied
on the idea that the presence of a government agent observing the Chan-
nel, together with the topography of the Channel itself, placed him in con-
structive custody — even if the agent did not actually observe Cruz-
Escoto until he was already within the United States. Therefore, it was
important to his defense that the jury be instructed that, in the circum-
stances of the topography of the Channel, brief periods of interruption in
the government surveillance while Cruz-Escoto was still in the Channel,
did not preclude a finding of official restraint.
   6
     I agree with the majority that a rational fact-finder could have found
that Cruz-Escoto entered free from official restraint, because it is unclear
whether Cruz-Escoto entered the United States by moving up the lighted
interior of the Channel or by scaling the international boundary fence at
some other point and only later scaling the inner Ballard fence to enter the
Channel interior. The agent’s testimony that Cruz-Escoto was running
2072               UNITED STATES v. CRUZ-ESCOTO
the majority acknowledges, “the geography involved in this
case presents a unique situation.” Maj. Op. at 2056. And
while I agree that “the jury heard sufficient evidence to decide
that Cruz-Escoto was free from official restraint,” id. at 2056,
that was not the only possible interpretation of the evidence.
Unfortunately, however, the district court gave an instruction
which precluded the jury from even considering Cruz-
Escoto’s theory, even if the jury accepted the agent’s testi-
mony.

   Because Cruz-Escoto was deprived of the opportunity to
present his theory of the defense to the jury, I would reverse
the judgment of conviction and remand for a new trial. I
respectfully dissent.




northwest, as if he had come from the southeast, strongly suggests that
Cruz-Escoto came across the border within the Channel. The agent also
testified, however, that it is common for aliens to scale the border fence
at other points along the Channel, where there are more shadows. It is for
this reason that I agree with the majority’s rejection of Cruz-Escoto’s
claim that his motion for acquittal should have been granted.
