                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 24 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10431

              Plaintiff - Appellee,              D.C. No. 4:11-cr-01089-DCB-
                                                 HCE-1
  v.

ARTURO ASTORGA-GONZALEZ,                         MEMORANDUM*
AKA Arturo Astorga-Gonzales, AKA
Arturo Gonzalez Astorga,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted December 2, 2013
                            San Francisco, California

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Arturo Astorga-Gonzalez (“Astorga”), having been previously removed

from the United States, sought to reenter using a letter from immigration services

stating that he had an appointment in Riverside, California to replace his resident



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
alien card. He was convicted of attempted illegal reentry when the jury did not

believe his claim that five days before his attempt to reenter, border guards told

him that he could legally reenter. On appeal, he argues that: (a) he was entitled to

an entrapment by estoppel instruction; (b) a government agent was improperly

allowed to address an element of the charged offense; (c) the prosecutor misstated

the requisite mens rea element in her closing argument; and (d) his 78-month

sentence is substantively unreasonable. We find none of the contentions

persuasive and affirm his conviction and sentence.1

      1. Because Astorga did not request an entrapment by estoppel instruction in

the district court, his claim is reviewed for plain error. See United States v. Bear,

439 F.3d 565, 568 (9th Cir. 2006). There are five elements to the affirmative

defense of entrapment by estoppel: “(1) an authorized government official

empowered to render the claimed erroneous advice, (2) who has been made aware

of all the relevant historical facts, (3) affirmatively told him the proscribed conduct

was permissible, (4) that he relied on the false information, and (5) that his reliance

was reasonable.” United States v. Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004)

(internal citations and quotation marks omitted).



      1
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
      Astorga argues that “either the district court committed reversible plain error

by failing to instruct the jury sua sponte on the affirmative defense of entrapment

by estoppel, or defense counsel was ineffective for failing to request such an

instruction.”2 This argument fails because Astorga did not present an adequate

factual basis for the instruction. There was no evidence that he fully informed the

guards of his situation, or that the guards affirmatively told him he could reenter

the United States. Moreover, it does not appear that he asserted reliance when he

was first arrested. Also, defense counsel may have declined to advance an

entrapment defense in order to avoid having Astorga cross-examined on the

specifics of the defense. Astorga has not shown that he was entitled to a sua

sponte instruction or that defense counsel was ineffective for failing to request

such an instruction.

      2. When Agent Soria in response to a question stated that Astorga did not

have a legal right to be in the United States, defense counsel objected, and the

agent clarified his answer to explain that his review of the government’s

documents did not disclose any paper authorizing Astorga’s reentry. This response



      2
              With his reply brief, Astorga submitted a press release. The
government filed a motion to strike the press release and Astorga responded with a
request for judicial notice. The request for judicial notice is granted and the
motion to strike is denied.

                                          3
did not directly address an element of the charged crime and defense counsel did

not object. Astorga has not shown that the district court abused its discretion in

failing to exclude this evidence. See United States v. Edwards, 235 F.3d 1173,

1178 (9th Cir. 2000). Furthermore, in context, the agent’s comment was not likely

to have had any effect on the jury’s verdict. See United States v. Pang, 362 F.3d

1187, 1192 (9th Cir. 2004).

      3. Astorga claims that the prosecutor misstated the mens rea standard in her

closing argument. Because there was no contemporaneous challenge to the

statement, we review only for plain error. Astorga’s contention is not persuasive

because: (a) in context it is doubtful that the prosecutor’s statement was improper;

(b) the jury was properly instructed and we have held that instructions carry more

weight than argument, see United States v. Begay, 673 F.3d 1038, 1046 (9th Cir.

2011) (en banc); and (c) it is unlikely that the statement had any effect on the jury’s

verdict.

      4. Astorga asserts that his 78-month sentence, which was at the low end of

the Guidelines, is unreasonable because his prior crimes occurred more than eight

years ago when he was 21 or younger. We review criminal sentences for

reasonableness and in doing so consider whether the district court’s sentencing

decision was an abuse of discretion. United States v. Amezcua-Vasquez, 567 F.3d


                                           4
1050, 1053 (9th Cir. 2009). Here, the district court addressed the mitigating

factors offered by Astorga and determined that they only supported reducing his

sentence to the low end of the Guideline range. Astorga has not carried his burden

of showing that this was unreasonable.

      Astorga’s conviction and sentence are affirmed.




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