                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 
                Plaintiff-Appellee,              No. 07-50226
               v.                                  D.C. No.
GUILLERMO ANTONIO VASQUEZ-                      CR-05-00014-
LANDAVER, aka Gabriel Gonzalo                       MJL-1
Campos-Landaver,                                  OPINION
             Defendant-Appellant.
                                          
         Appeal from the United States District Court
            for the Southern District of California
          M. James Lorenz, District Judge, Presiding

                   Submitted March 5, 2008*
                      Pasadena, California

                       Filed May 21, 2008

      Before: Kim McLane Wardlaw, Ronald M. Gould,
               Sandra S. Ikuta, Circuit Judges.

                     Opinion by Judge Ikuta




  *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                5907
5910         UNITED STATES v. VASQUEZ-LANDAVER


                        COUNSEL

Julie A. Blair, San Diego, California, for the defendant-
appellant.

William M. Narus, Assistant United States Attorney, Office
of the United States Attorney, San Diego, California, for the
plaintiff-appellee.
             UNITED STATES v. VASQUEZ-LANDAVER            5911
                         OPINION

IKUTA, Circuit Judge:

   Guillermo Antonio Vasquez-Landaver (Vasquez) appeals
his 90-month sentence and underlying conviction for being
found in the United States after being deported. He contends:
(1) the district court erred in not allowing him to present any
evidence of duress and in not giving a jury instruction on a
duress defense; and (2) his within-Guidelines sentence is
unreasonable and was an impermissible punishment for going
to trial. We have jurisdiction under 28 U.S.C. § 1291 and we
affirm.

                               I

  Vasquez was born in El Salvador in 1971, and first came
to the United States at the age of 18. Vasquez has been
deported from the United States on eight separate occasions;
most recently on September 15, 2004.

   On December 10, 2004, Vasquez and five others were
arrested by Border Patrol agents in an area near Tecate, Cali-
fornia, after agents responded to a seismic intrusion device
activation. Vasquez admitted he was a citizen and national of
El Salvador, and that he was in the United States illegally.
The agents took Vasquez to a border patrol checkpoint station
for further processing, where computer checks revealed that
Vasquez had an extensive immigration and criminal record
and had been frequently deported.

  While in custody, Vasquez described his route to the
United States as follows:

    [He] left his home in El Salvador on October 17,
    2004. He traveled by car, and then bus, to the El
    Salvador/Guatemala border. Vasquez crossed into
    Guatemala using an El Salvador border crosser card.
5912              UNITED STATES v. VASQUEZ-LANDAVER
       He then proceeded to travel by raft across a river and
       into Mexico. Vasquez took various buses and trains
       north, through various cities of Mexico. He eventu-
       ally arrived in Mexicali, B.C., Mexico, on November
       18, 2004, where he stayed until November 26, 2004.
       While in Mexicali, he met a smuggler who arranged
       for his travel into the United States, through the hills
       near Tecate, California.

On December 13, 2004, the government filed a complaint
against Vasquez, charging him with being “found in the
United States” after previously being “excluded, deported and
removed,” in violation of 8 U.S.C. § 1326.1 Vasquez was
indicted by a grand jury for the violation of § 1326 on January
5, 2005.

  On February 28, 2006, Vasquez filed a motion in limine
which included notice of intent to introduce evidence that his
entry into the United States “was by reason of necessity/
duress.” The motion stated that Vasquez would testify as fol-
lows:
  1
   8 U.S.C. § 1326(a) provides, in pertinent part:
      any alien who —
        (1) has been denied admission, excluded, deported, or removed
      or has departed the United States while an order of exclusion,
      deportation, or removal is outstanding, and thereafter
         (2) enters, attempts to enter, or is at any time found in, the
      United States, unless (A) prior to his reembarkation at a place
      outside the United States or his application for admission from
      foreign contiguous territory, the Attorney General has expressly
      consented to such alien’s reapplying for admission; or (B) with
      respect to an alien previously denied admission and removed,
      unless such alien shall establish that he was not required to obtain
      such advance consent under this or any prior Act,
      shall be fined under Title 18, or imprisoned not more than 2 years
      or both.
                 UNITED STATES v. VASQUEZ-LANDAVER                       5913
      Just prior to his attempt to enter the USA, Defen-
      dant[ ] had been threatened by the police in his home
      town in El Salvador. In the past he had been arrested
      by a corrupt officer because he did not pay extortion
      money. After a trial he was found not guilty and the
      officer who had extorted him was arrested tried and
      found guilty. That officer was killed while in jail.
      Other officers had the family of the dead officer to
      this day continue to threaten [Vasquez].[2] As a for-
      mer resident of the USA he fled north. The Govern-
      ment of El Salvador refuses to act. In Mexico,
      asylum is not available to defendant.

      He had no other choice but to come to the USA or
      go to war with the El Salvador government.

Vasquez also gave notice of intent to present expert testimony
of an El Salvador police officer, who “[i]n addition to actual
knowledge of defendants [sic] situation in El Salvador by rea-
son of being involved with the police during his trial . . . can
give expert testimony as to the situation generally as to the
inability of persons to obtain relief from the El Salvador gov-
ernment when it is ‘OUT TO GET THEM.’ ”3

   In its opposition to Vasquez’s motion in limine, the govern-
ment asked the district court to preclude Vasquez from pre-
senting the duress theory at trial, arguing that Vasquez failed
to make a prima facie showing of duress. The government
also asked the district court to preclude Vasquez from offer-
ing the proposed expert testimony because it was irrelevant to
the issues in the case and Vasquez had not provided the gov-
ernment any discovery regarding the El Salvador police offi-
  2
     Although this sentence is not clear, we interpret it as stating that other
officers directed the dead officer’s family to continue to threaten Vasquez,
even up until today.
   3
     Vasquez also intended to call an expert witness from Amnesty Interna-
tional, but later changed his mind.
5914         UNITED STATES v. VASQUEZ-LANDAVER
cer’s qualifications. At the March 13, 2006 motion hearing,
the district court stated it would allow Vasquez to testify
regarding his reasons for entering the United States, but
would not provide a jury instruction on duress. The district
court also precluded the expert witness testimony because it
would be irrelevant in the absence of sufficient evidence of a
duress defense.

   Following the hearing, the government moved to preclude
Vasquez from testifying to his purported reason for entering
the United States. On March 27, 2006, the district court
granted the government’s motion, and subsequently denied
Vasquez’s motion to reconsider. During the trial, the court
again declined to give Vasquez’s requested jury instruction on
duress. The jury returned a guilty verdict on one count of vio-
lation of 8 U.S.C. § 1326 on May 10, 2006.

   At the April 30, 2007 sentencing hearing, Vasquez asked
the court to depart from the United States Sentencing Guide-
lines range of 84 to 105 months calculated in the presentence
report (PSR), and instead impose a sentence of 48 months.
Vasquez sought such a reduction from the Guidelines range
primarily because of his imperfect duress defense and the fact
that he had been offered 48 months in an earlier plea bargain.
The government argued that the court should consider a
Guidelines range of 100 to 125 months, higher than the range
calculated in the PSR, on the ground that Vasquez was not
entitled to a reduction for acceptance of responsibility. The
government sought a 113-month sentence in the middle of
that higher range because of Vasquez’s violent criminal his-
tory. The district court adopted the PSR’s guidelines range of
84 to 105 months, and sentenced Vasquez to 90 months.
Vasquez timely appealed his conviction and sentence.

                              II

  Vasquez argues that the district court erred by not allowing
him to present evidence regarding his duress defense and not
             UNITED STATES v. VASQUEZ-LANDAVER            5915
allowing the jury to consider this theory. We review de novo
whether the district court erred in ruling that Vasquez could
not present evidence as to his duress defense and in not
instructing the jury on this defense. United States v. Moreno,
102 F.3d 994, 997 (9th Cir. 1996) (evidence); United States
v. Shryock, 342 F.3d 948, 987 (9th Cir. 2003) (jury instruc-
tion).

   [1] We have long held that a defendant is not entitled to
present a duress defense to the jury unless the defendant has
made a prima facie showing of duress in a pre-trial offer of
proof. See Moreno, 102 F.3d at 998-99. Absent such a prima
facie case, evidence of duress is not relevant. Id. “While the
constitutional right to testify permits a defendant to choose
whether or not to take the witness stand, it does not authorize
a defendant to present irrelevant testimony.” Id. at 999.
Accordingly, a district court may exclude evidence on duress
and may refrain from providing a jury instruction on duress
where the defendant’s proffer failed to make a prima facie
showing of the required elements. See id. at 998-99; United
States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984).

   [2] “A defendant must establish three elements in order to
present [a duress] defense: (1) an immediate threat of death or
serious bodily injury, (2) a well-grounded fear that the threat
will be carried out, and (3) lack of a reasonable opportunity
to escape the threatened harm.” Moreno, 102 F.3d at 997. The
type of duress or coercion that “ ‘will excuse the commission
of a criminal act must be immediate and of such nature as to
induce a well-grounded apprehension of death or serious bod-
ily injury if the act is not done.’ ” United States v. Atencio,
586 F.2d 744, 746 (9th Cir. 1978) (quoting United States v.
Gordon, 526 F.2d 406, 407 (9th Cir. 1975)). “Of crucial
importance in any attempt to raise duress as a defense are the
elements of immediacy and opportunity to avoid the act.” Id.

 [3] To establish the element of immediacy, a defendant
must make a prima facie showing that the defendant com-
5916           UNITED STATES v. VASQUEZ-LANDAVER
pleted the illegal action under a threat of immediate harm to
the defendant or the defendant’s family. Under this test, the
threat to the defendant or the defendant’s family must be
“present, immediate, or impending,” United States v.
Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984), such
that the defendant’s persecutors “figuratively held a gun to his
head” (or to his family’s heads) compelling the defendant to
commit the illegal action. Shryock, 342 F.3d at 988; see also
United States v. Otis, 127 F.3d 829, 835 (9th Cir. 1997) (“[A]
jury could conclude that [the defendant] was forced to work
for the cartel by the threat of a second kidnapping of his
father, which would take place immediately if he did not fol-
low orders.”). A threat raising “the possibility of action after
thirty days” does not meet the requirements of “ ‘immedia-
cy.’ ” Shryock, 342 F.3d at 987; see also United States v.
Becerra, 992 F.2d 960, 964 (9th Cir. 1993) (no prima facie
showing of immediacy in a year-long scheme to distribute
cocaine and heroin even though defendant testified the person
that threatened him was in the defendant’s restaurant “con-
stantly” and “even parked outside [defendant’s] apartment on
one of his days off”).

   [4] We agree with the district court that Vasquez failed to
make a prima facie showing that he committed the crime of
illegal entry due to the pressure of “an immediate threat of
death or serious bodily injury.”4 Moreno, 102 F.3d at 997.
Vasquez’s motion to the district court did not proffer evidence
that failure to enter the United States illegally would immedi-
ately result in harm to himself or his family. Even assuming
that Vasquez’s proffer was credible, Vasquez offered no evi-
dence that he was escaping an immediate threat of harm when
he violated the law by crossing the border. See United States
v. Wofford, 122 F.3d 787, 791 (9th Cir. 1997); Jennell, 749
F.2d at 1306; see also Contento-Pachon, 723 F.2d at 693
  4
   Because a “defendant must establish all three elements” of a duress
defense, Becerra, 992 F.2d at 964, we do not address the remaining ele-
ments.
                UNITED STATES v. VASQUEZ-LANDAVER                    5917
(“Factfinding is usually a function of the jury, and the trial
court rarely rules on a defense as a matter of law.”). There
was no evidence of a figurative gun to his head compelling
his illegal entry. Shryock, 342 F.3d at 988. Cf. United States
v. Solorzano-Rivera, 368 F.3d 1073, 1076 (9th Cir. 2004)
(describing the defendant’s testimony that “chased by the
police, he jumped over the 15-foot-high border fence, hurting
his foot in the process,” as “central” to the defendant’s duress
defense to illegal reentry under § 1326). Also, Vasquez did
not offer to testify that any member of his family would suffer
immediate harm if he did not violate 18 U.S.C. § 1326. Cf.
Otis, 127 F.3d at 835. Nor did Vasquez state that he was
under constant surveillance for the 53 days5 between his
departure from El Salvador and his entry into the United
States from Mexico. See Wofford, 122 F.3d at 791.

   [5] Vasquez argues that he is like the defendant in
Contento-Pachon, who succeeded in making a prima facie
showing of duress. Contento-Pachon does not help Vasquez.
In that case, the defendant agreed to smuggle 129 balloons of
cocaine from Colombia into the United States after a drug
smuggler told him that “his failure to cooperate would result
in the death of his wife and three year-old child.” 723 F.2d at
693. The drug smuggler also informed the defendant “that he
would be watched at all times during the trip.” Id. Moreover,
the person who threatened Contento-Pachon, “had gone to the
trouble to discover that Contento-Pachon was married, that he
had a child, the names of his wife and child, and the location
of his residence.” Id. at 694. Because large sums of money
were at stake, the defendant had reason to believe the threats
would be carried out. Id. Given evidence that the defendant
was under constant surveillance, and thus under an ongoing
threat of retaliation while undertaking the drug smuggling
activity, we held that Contento-Pachon’s “contention that he
  5
   The district court erroneously calculated that time period as 56 days,
but at the same hearing the government clarified that Vasquez’s trip lasted
53 days.
5918          UNITED STATES v. VASQUEZ-LANDAVER
was operating under the threat of immediate harm was sup-
ported by sufficient evidence to present a triable issue of
fact.” Id.; see Wofford, 122 F.3d at 791 (“[T]he threat to
Contento-Pachon was immediate because it was still continu-
ing — if his testimony was believed, Contento-Pachon was
under constant surveillance. . . while he committed the illegal
acts.”). Although Vasquez argues that like the defendant in
Contento-Pachon, he “was repeatedly threatened by the cor-
rupt police officer’s family and other officers,” Vasquez’s
allegations of vague threats by unnamed individuals in El Sal-
vador are far removed from Contento-Pachon’s allegations
that he faced specific threats of immediate harm during the
entire period in which he engaged in illegal activity.

   [6] Vasquez also contends that the threat he faced was “im-
mediate” because he “believed that he would not be safe from
harm either in Guatemala or Mexico — that the United States
was the only country which would be willing to help him and
potentially grant him asylum and that is why he came here.”
These assertions are insufficient to make a prima facie case of
duress. Vasquez “may have legitimately feared” that the El
Salvador police would harm him, but “[f]ear alone is not
enough to establish a prima facie case of duress.” Becerra,
992 F.2d at 964. Regardless whether he was eligible for asy-
lum in those countries, Vasquez did not proffer that he suf-
fered an immediate threat of harm in either Mexico or
Guatemala.

   [7] Accordingly, we affirm the district court’s decision to
preclude all evidence on Vasquez’s duress defense and its
rejection of a duress jury instruction. Vasquez’s related argu-
ment that he should have been able to testify in further sup-
port of his proffer is foreclosed by our decision in Moreno.
There we held that “[e]vidence of duress is not relevant if the
defendant fails to present evidence of a prima facie case of the
affirmative defense.” 102 F.3d at 998.
                UNITED STATES v. VASQUEZ-LANDAVER                     5919
                                    III

   Vasquez also appeals his 90-month sentence. Vasquez
argues the sentence was greater than necessary to meet the
goals of 28 U.S.C. § 3553(a) because the district court failed
to adequately consider sentencing disparities between the 90-
month sentence and the 48-month sentence offered to
Vasquez and similarly situated defendants to enter fast-track
plea agreements.6 He also argues that the 90-month sentence
is an impermissible punishment “for exercising his constitu-
tional right to trial.” We affirm the district court’s sentence.

                                    A

  We first address Vasquez’s contention that his sentence
was greater than necessary, and thus, unreasonable.

   [8] “Appellate review is to determine whether the sentence
is reasonable.” United States v. Carty, No. 05-10200, 2008
U.S. App. LEXIS 6084, at *16 (9th Cir. Mar. 24, 2008) (en
banc). As we recently explained:

      [t]he overarching statutory charge for a district court
      is to “impose a sentence sufficient, but not greater
      than necessary” to reflect the seriousness of the
      offense, promote respect for the law, and provide
      just punishment; to afford adequate deterrence; to
      protect the public; and to provide the defendant with
  6
    Under U.S.S.G. § 5K3.1, “[u]pon motion of the Government, the court
may depart downward not more than 4 levels pursuant to an early disposi-
tion program authorized by the Attorney General of the United States and
the United States Attorney for the district in which the court resides.” The
fast-track program is one such “early disposition program,” § 5K3.1,
under which federal prosecutors in districts along the United States-
Mexico border offer “shorter sentences to defendants who plead[ ] guilty
at an early stage in the prosecution and agree[ ] to waive appeal and other
rights.” See United States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir.
2006).
5920          UNITED STATES v. VASQUEZ-LANDAVER
    needed educational or vocational training, medical
    care, or other correctional treatment.

Id. at *11-12 (quoting 18 U.S.C. § 3553(a)). While a district
court commits procedural error if it fails to consider the
§ 3553(a) factors, including “the need to avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct,” § 3553(a)(6),
it “need not tick off each of the § 3553(a) factors to show that
it has considered them. We assume that district judges know
the law and understand their obligation to consider all of the
§ 3553(a) factors, not just the Guidelines.” Carty, 2008 U.S.
App. LEXIS 6084, at *16. We review all sentencing decisions
for abuse of discretion. Id. at *16-17.

   [9] The district court adequately explained its decision to
give Vasquez a within-Guidelines sentence of 90 months. See
id. at *25-26 (noting that, except in an unusual or complex
case, a district court need not provide much explanation for
a within-Guidelines sentence). The district court was aware of
Vasquez’s request for the same 48-month sentence that the
government had offered in a plea agreement, but which
Vasquez had rejected. After discussing the § 3553(a) factors,
and explicitly recognizing both the “need to avoid unwar-
ranted sentence disparities among defendants with similar
records who are also guilty of similar conduct,” and “that the
sentence. . . is sufficient but not greater than necessary to
reflect the seriousness of the offense,” the district court
decided to impose the within-Guidelines 90-month sentence.
The sentence was reasonable and the district court’s refusal to
give Vasquez the 48-month sentence was not an abuse of dis-
cretion. See United States v. Reina-Rodriguez, 468 F.3d 1147,
1158-59 (9th Cir. 2006), overruled in part on other grounds
by United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.
2007) (en banc); United States v. Marcial-Santiago, 447 F.3d
715, 718-19 (9th Cir. 2006). Nor was the district court
required to explicitly mention the types of sentences received
              UNITED STATES v. VASQUEZ-LANDAVER               5921
by otherwise similarly situated defendants who pleaded
guilty. Carty, 2008 U.S. App. LEXIS 6084, at *16.

                               B

   We also reject Vasquez’s argument that his sentence was
an impermissible punishment for exercising his constitutional
right to trial.

   [10] “When a defendant voluntarily chooses to reject or
withdraw from a plea bargain, he retains no right to the
rejected sentence.” United States v. Carter, 804 F.2d 508, 513
(9th Cir. 1986).

    [A]s long as there is no indication the defendant has
    been retaliated against for exercising a constitutional
    right, the government may encourage plea bargains
    by affording leniency to those who enter pleas. Fail-
    ure to afford leniency to those who have not demon-
    strated those attributes on which leniency is based is
    unequivocally . . . constitutionally proper.

United States v. Narramore, 36 F.3d 845, 847 (9th Cir. 1994)
(internal citations and quotation marks omitted) (second alter-
ation in original). However, a higher sentence is impermissi-
ble where the district court imposes it to punish the defendant
for asserting the constitutional right to trial by jury. Carter,
804 F.2d at 513; see also, e.g., United States v. Medina-
Cervantes, 690 F.2d 715, 716 (9th Cir. 1982) (vacating a sen-
tence where the district court’s reference to the costs of trial
and statements such as, “ ‘[i]ts [sic] obvious to me that this
man wanted a trial, with all his constitutional rights, and he
insisted upon them and he had them,” gave rise to the infer-
ence that the defendant was punished more severely because
of his exercise of his right to trial).

  [11] Here, nothing in the record suggests that the district
court imposed the within-Guidelines 90-month sentence in
5922          UNITED STATES v. VASQUEZ-LANDAVER
retaliation for Vasquez’s going to trial. Although Vasquez
asserted his right to trial, the district court decreased his
offense level by two points for acceptance of responsibility.
See also United States v. Espinoza-Cano, 456 F.3d 1126,
1137 (9th Cir. 2006) (noting that it is “possible for a defen-
dant both to exercise his right to a trial and to demonstrate
acceptance of responsibility”); United States v. Gonzalez, 897
F.2d 1018, 1020 (9th Cir. 1990). In the absence of any evi-
dence that the district court’s decision was improperly moti-
vated, defendant’s argument that the higher sentence is
impermissible is foreclosed by Carter. See 804 F.2d at 513
(“Mere imposition of a heavier sentence [after a defendant
rejects a plea bargain], without more, does not invalidate it.”).
The record does not suggest that the district court gave any
improper weight to the failure to enter the plea agreement pro-
posed by the government. See id. at 514.

                               IV

   Because Vasquez failed to make a prima facie showing of
an immediate threat, the district court properly precluded
Vasquez from introducing any evidence on a duress defense
and properly declined to instruct the jury on duress. We
affirm the district court’s 90-month sentence as reasonable.
The district court did not abuse its discretion in declining to
give Vasquez the same 48-month sentence offered to Vasquez
and similarly situated defendants as a plea bargain. Nothing
in the record suggests Vasquez’s sentence was imposed to
punish him for exercising his constitutional right to a trial.

  AFFIRMED.
