     Case: 16-10609      Document: 00513913700         Page: 1    Date Filed: 03/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 16-10609                              FILED
                                  Summary Calendar                      March 15, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAFAEL ANTONIO MARIN-PINA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:15-CR-30-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges
PER CURIAM: *
       Rafael Antonio Marin-Pina was convicted by a jury of illegal reentry
after a prior deportation and received a within-guidelines sentence of 51
months of imprisonment and a three-year term of supervised release. He
raises two issues on appeal: (1) the district court abused its discretion and
denied him a complete defense when it declined to take judicial notice of 8
U.S.C. § 1158; and (2) his sentence violated due process, as it exceeded the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-10609

statutory maximum which was charged in the indictment. We do not address
the latter argument, as Marin-Pina correctly concedes that it is foreclosed
under Almendarez-Torres v. United States, 523 U.S. 224 (1998).
      We “review alleged violations of a defendant’s Sixth Amendment right to
present a complete defense de novo . . . subject to harmless error review.”
United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008) (italics omitted).
“Absent a constitutional violation, [this court] review[s] a district court’s
evidentiary decisions . . . for an abuse of discretion, which requires the
defendant to show that the district court’s evidentiary rulings were clearly
prejudicial.” United States v. Dvorin, 817 F.3d 438, 449 (5th Cir.) (internal
quotation marks and citations omitted), cert. denied, 137 S. Ct. 140 (2016).
This “review is necessarily heightened in a criminal case,” Dvorin, 817 F.3d at
448, but is also subject to harmless-error analysis, United States v. Cantu, 167
F.3d 198, 203 (5th Cir. 1999).
      We need not determine whether the district court’s decision not to take
judicial notice of § 1158 was an abuse of discretion, because any error was
harmless.   Assuming Marin-Pina would have been excluded from seeking
asylum under § 1158 based on his aggravated battery conviction, asylum was
far from the only reasonable legal alternative available to him. See United
States v. Posada-Rios, 158 F.3d 832, 873-74 (5th Cir. 1998). He could have
returned to the Yucatan, where trial testimony indicated that he previously
lived without threat to his safety, or he could have pursued other relief in the
United States such as withholding of removal or protection under the
Convention Against Torture, notwithstanding the prior conviction.            See
Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 n.1 (2013). Moreover, Marin-Pina
presented no evidence at trial that he was under a present, impending,
unlawful, and imminent threat that “induce[d] a well-grounded apprehension



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                                  No. 16-10609

of death or serious bodily injury,” Posada-Rios, 158 F.3d at 873, given that his
own testimony was that several weeks passed between the last threat he
received in Mexico and when he crossed into the United States, see id. at 874-
75.
       Because there were a number of legal alternatives available to Marin-
Pina and there was no evidence that he was subject to an imminent threat, he
could not have demonstrated his affirmative defense even if the district court
had taken judicial notice of § 1158. Any error was harmless, therefore, because
it did not affect his substantial rights. See FED. R. CRIM. P. 52(a).
       AFFIRMED.




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