                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 01 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10087

              Plaintiff-Appellee,                D.C. No.
                                                 2:15-cr-01367-JJT-1
 v.

GREGORIO MUNOZ PORTILLO,                         MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    John Joseph Tuchi, District Judge, Presiding

                        Argued and Submitted May 17, 2017
                             San Francisco, California

Before: KLEINFELD and WARDLAW, Circuit Judges, and PETERSON,**
District Judge.

      Gregorio Munoz Portillo appeals his conviction under 8 U.S.C. § 1326 for

illegal reentry. He contends that the district court erred by preventing him from



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
presenting an affirmative defense pursuant to § 1326(a)(2)(B). We have

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

1.    The district court did not preclude Portillo from presenting evidence to

support his § 1326(a)(2)(B) defense theory. The district court denied the

government’s motion in limine to prevent Portillo from presenting a

§ 1326(a)(2)(B) defense. Portillo nevertheless contends that the district court’s

comments during its oral ruling restricted his ability to introduce evidence

supporting a § 1326(a)(2)(B) defense. But the district court merely noted that

Portillo’s counsel could not ask witnesses for their legal opinions of

§ 1326(a)(2)(B), and that counsel should be careful not to confuse the jury about

the elements of the offense. The court did not prevent Portillo from introducing

the evidence necessary to his defense theory: the date of his reentry.

2.      Nor did the district court err by preventing Portillo’s counsel from

presenting closing argument on his § 1326(a)(2)(B) defense theory. A court is

required to allow argument on a defense theory only when “reasonable inferences

from the evidence support[] [it].” United States v. Miguel, 338 F.3d 995, 1000–01

(9th Cir. 2003); see also United States v. Boulware, 558 F.3d 971, 974 (9th Cir.

2009) (“[A] trial court may preclude a defense theory where ‘the evidence, as

described in the defendant’s offer of proof, is insufficient as a matter of law to


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support the proffered defense.’” (quoting United States v. Dorrell, 758 F.2d 427,

430 (9th Cir.1985))).

      According to Portillo’s interpretation of § 1326(a)(2)(B), he could

affirmatively defend against his prosecution by showing that he reentered after the

period during which he needed to obtain consent to reapply for admission (either

five or ten years). However, he introduced no evidence about his reentry date.

Therefore, even if his interpretation of the statute is correct, there was no evidence

to support his theory. Consequently, the district court properly restricted his

counsel’s closing argument. We do not reach the district court’s rationale: that

Portillo’s defense theory is not legally cognizable. See United States v.

McClendon, 713 F.3d 1211, 1218 (9th Cir. 2013) (“Our reasoning is different from

that of the district court, but we may affirm on any basis supported by the record

and do so here.”).

3.    The district court correctly instructed the jury that an element of § 1326 is

that “the defendant was found in the United States without having obtained . . .

consent . . . to reapply for admission.” At the government’s request, it added that

there is no “time limitation on the requirement that the Defendant obtain . . .

consent . . . to reapply for admission.” Even if this was incorrect as a matter of




                                           3
law, it would be harmless error. See United States v. Henderson, 243 F.3d 1168,

1171 (9th Cir. 2001) (erroneous jury instructions are reviewed for harmlessness).

      It is unrefuted that Portillo never obtained consent before reentering.

Portillo was found in the United States in 2015, and the immigration agents

testified that there was no record of him having applied for or obtained consent to

reapply for admission. Further, there was no evidence that he entered after some

putatively significant time limitation had elapsed. Therefore, the additional

instruction could not have affected the jury’s finding on the advance consent

element of § 1326. The additional instruction was superfluous and, in turn,

harmless beyond a reasonable doubt.

      AFFIRMED.




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