                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            FEB 18 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-50505

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02743-CAB-1

 v.
                                                 MEMORANDUM*
ANGEL SOTO-SANCHEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                           Submitted February 3, 2016**
                              Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.

      Angel Soto-Sanchez appeals his conviction for being a Removed Alien

Found in the United States in violation of 8 U.S.C. § 1326(a) and (b). This court




        *
             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).
has jurisdiction to review the final judgment of the district court under 28 U.S.C.

§ 1291.

      Soto-Sanchez argues that the district court erred in failing to charge the jury

with his proposed “official restraint” instruction. To be “found in the United

States” within the meaning of § 1326, the defendant must have been free from

“official restraint,” including constant surveillance, from the time he or she crossed

the border until apprehension. See United States v. Castellanos-Garcia, 270 F.3d

773, 775 (9th Cir. 2001). A defendant is entitled to have a jury instruction on any

defense theory “which provides a legal defense to the charge against him and

which has some foundation in the evidence, even though the evidence may be

weak, insufficient, inconsistent, or of doubtful credibility.” United States v.

Yarbrough, 852 F.2d 1522, 1541 (9th Cir. 1988). However, “mere speculation”

does not entitle the defendant to such an instruction. Castellanos-Garcia, 270 F.3d

at 776. “Where the parties dispute whether the evidence supports a proposed

instruction, we review a district court’s rejection of the instruction for an abuse of

discretion.” United States v. Bello-Bahena, 411 F.3d 1083, 1089 (9th Cir. 2005).

      There was no abuse of discretion in the district court’s determination that the

evidence did not support an “official restraint” instruction. Soto-Sanchez and a

companion were apprehended about a half-mile north of the Mexican border after


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Border Patrol Agent Michael Stewart noticed footprints on a trail in Goat Canyon.

Agent Stewart followed the footprints to an area of brush and discovered

Soto-Sanchez and his companion under some tree branches, curled up in the fetal

position. Agent Stewart testified that he had not received any information from

other agents that led him to discover these two individuals, and that after calling

for backup, he learned that he was the only agent in the area. Although Soto-

Sanchez adduced evidence that border patrol agents sometimes survey the canyon

from a lookout point, such generalized evidence is insufficient to require an

“official restraint” instruction. See Castellanos-Garcia, 270 F.3d at 777. Cf.

Bello-Bahena, 411 F.3d 1083, 1090–91 (holding that an official restraint

instruction was required where one agent, using a night scope, had guided another

agent to the defendant).

       Even if there was sufficient evidence to support Soto-Sanchez’s official

restraint theory, the district court gave an official restraint instruction (albeit not

the one proposed by defense counsel) after closing arguments. Defense counsel

did not object to this instruction. Reviewing for plain error, we find no merit in

Soto-Sanchez’s argument that the instruction ultimately given by the district court

was improper. See United States v. Hofus, 598 F.3d 1171, 1175 (9th Cir. 2010).

The instruction correctly stated the law and sufficiently informed the jury of the


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requirement that a defendant cross the border free of “official restraint” in order to

be convicted under 8 U.S.C. § 1326.

      The judgment of the district court is AFFIRMED.




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