                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 30 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10230

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00207-RS-1

  v.
                                                 MEMORANDUM*
RODOLFO PONCE IBARRA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Richard Seeborg, District Judge, Presiding

                       Argued and Submitted May 13, 2014
                            San Francisco, California


Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.

       Defendant-Appellant Rodolfo Ponce Ibarra (“Ibarra”) appeals his conviction

for reentry as a removed alien in violation of 8 U.S.C. § 1326. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court correctly concluded that Ibarra’s offer of proof was

insufficient as a matter of law to support his proffered necessity defense. Ibarra

failed to show that a reasonable jury could conclude that he entered the United

States in order to prevent imminent harm, or that he had no legal alternative to

violating the law. See United States v. Arellano-Rivera, 244 F.3d 1119, 1125–26

(9th Cir. 2001).

      The district court neither misapplied U.S.S.G. § 3E1.1 nor clearly erred in

determining that Ibarra failed to clearly demonstrate acceptance of responsibility

for his offense. See U.S.S.G. § 3E1.1 cmt. n.1 (listing factors the district court may

consider in determining whether an adjustment is warranted).

      Ibarra argues that the district court erroneously concluded that he was not

eligible for an adjustment for acceptance of responsibility because he asserted a

duress defense. It is true that a defendant’s assertion of duress or necessity as an

affirmative defense does not preclude the district court from granting a sentencing

reduction for acceptance of responsibility. See United States v. Martinez-Martinez,

369 F.3d 1076, 1089–90 (9th Cir. 2004) (holding that where a defendant exercises

his constitutional right to a trial and presents a duress defense, the determination

whether he clearly accepted responsibility for his criminal conduct is based

“primarily upon pre-trial statements and conduct” (emphasis omitted) (quoting


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§ 3E1.1 cmt. n.2)). Moreover, “the affirmative defense of duress does not dispute

any of the . . . essential elements of the crime charged.” United States v. Gamboa-

Cardenas, 508 F.3d 491, 505 (9th Cir. 2007). We do not, however, understand the

district court to have concluded that Ibarra was not eligible for an adjustment for

acceptance of responsibility simply because he asserted a duress defense. Rather,

the district court considered the relevant § 3E1.1 factors and concluded that Ibarra,

through his pretrial statements and conduct, had not made “a full and complete

acceptance of responsibility to warrant the departure.” This determination was not

clearly erroneous.

      In declining to grant a downward departure for imperfect duress under

U.S.S.G. § 5K2.12 the district court recognized its authority to grant a departure,

but concluded that the departure was not warranted on the facts of the case. “The

court’s decision thus is discretionary and therefore not reviewable.” United States

v. Pizzichiello, 272 F.3d 1232, 1239 (9th Cir. 2002).

      The district court did not abuse its discretion in imposing a three-year term

of supervised release. U.S.S.G. § 5D1.1(c) provides that “[t]he court ordinarily

should not impose a term of supervised release in a case in which supervised

release is not required by statute and the defendant is a deportable alien who likely

will be deported after imprisonment.” However, the Application Notes for


                                         -3-
§ 5D1.1(c) provide that “[t]he court should . . . consider imposing a term of

supervised release on such a defendant if the court determines it would provide an

added measure of deterrence and protection based on the facts and circumstances

of a particular case.” § 5D1.1 cmt. n.5. Here, the district court noted Ibarra’s

repeated reentries and his criminal history, and explained that “for deterrent

purposes, I think the sentence has to be beyond what he has previously received.”

      AFFIRMED.




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