                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4039



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MANUEL POPOCA-ANSELMO,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-37-F)


Submitted:   September 3, 2004            Decided:   October 6, 2004


Before LUTTIG, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Manuel Popoca-Anselmo appeals his conviction for illegal

reentry into the United States following deportation, in violation

of 18 U.S.C. §§ 1326(a), (b)(2) (2000).

           Popoca-Anselmo’s sole contention on appeal is that the

district court erred by refusing to instruct the jury on the

defense of duress. Popoca-Anselmo asserts that he returned to this

country, albeit without permission, to avoid death threats made

against him in his native country of Mexico.          This court reviews de

novo a district court's decision not to instruct a jury on a

defendant's theory of a case.            United States v. Singh, 54 F.3d

1182, 1189 (4th Cir. 1995).        Where there is insufficient evidence,

as a matter of law, to support an element of the affirmative

defense,   the   defendant   can    be    precluded   from    presenting   any

evidence of duress to the jury.          United States v. Sarno, 24 F.3d

618, 621 (4th Cir. 1994).

           In order to establish a claim of duress, the defendant

must show that:    (1) he acted under an immediate threat of serious

bodily injury; (2) he had a well-grounded belief that the threat

would be carried out; and (3) he had no reasonable opportunity to

avoid violating the law and the threatened harm.             United States v.

Bailey, 444 U.S. 394, 410-15 (1980); United States v. King, 879

F.2d 137, 138-39 (4th Cir. 1989).           A defendant has the burden of




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establishing sufficient evidence of all three elements of the

defense.     Bailey, 444 U.S. at 415; Tanner, 941 F.2d at 588.

             After careful review of the record, we conclude, as the

district court found, that Popoca-Anselmo did not avail himself of

reasonable    opportunities   to   avoid    violating   the   law   and   the

threatened harm. Bailey, 444 U.S. at 410-15. Accordingly, we find

that Popoca-Anselmo has not met his burden, and the district court

properly refused to instruct the jury on the affirmative defense of

duress.    Id.; Singh, 54 F.3d at 1189.      We therefore affirm Popoca-

Anselmo’s conviction and sentence.         We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.




                                                                    AFFIRMED




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