                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10046

              Plaintiff - Appellee,              D.C. No. 4:10-cr-01157-FRZ-
                                                 GEE-1
  v.

MARTIN HERNANDEZ-SUSTAITA,                       MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                 Frank R. Zapata, Senior District Judge, Presiding

                            Submitted March 15, 2012 **
                             San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
District of Western Washington, sitting by designation.
      Martin Hernandez-Sustaita appeals his jury conviction and sentence for

illegal reentry. Because the parties are familiar with the factual and procedural

history of this case, we do not repeat it here. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      The district court declined to give Hernandez-Sustaita’s requested jury

instruction defining “enter” as “[t]hose who seek to enter in the sense of the law,

and those the policy of the law seeks to prevent from entering, are those who come

to stay permanently, or for a period of time, or to go at large and at will within the

United States.” The government presented evidence that Hernandez-Sustaita

approached officer Marvin Alvarenga when Alvarenga was working “outbound”

pedestrian traffic—encountering people going south from the United States into

Mexico—at the Nogales, Arizona port of entry. Alvarenga testified that upon

request for identification, Hernandez-Sustaita presented a Mexican identification

card and volunteered that he was in the United States illegally. Hernandez-Sustaita

was not under any restraint before he approached Alvarenga, and was therefore

free to go “at will” within the United States. There was no evidence that

Hernandez-Sustaita was unable to move at will within the United States. The

requested jury instruction was therefore unwarranted, and properly denied by the

district court. See United States v. Streit, 962 F.2d 894, 898 (9th Cir. 1992) (for a


                                           2
jury instruction to be proper, there must be “evidence upon which the jury could

rationally sustain the defense.” (quotation marks omitted)).

      Hernandez-Sustaita also argues that because he was arrested at the border, a

jury instruction regarding official restraint should be given. He claims that because

he was observed only at the port of entry, he could have been under official

restraint for the entire time he was present in the United States. Hernandez-

Sustaita’s own admissions undercut his argument. Since there was no evidence

that he had entered the United States immediately prior to apprehension, this

instruction was also properly denied by the district court. See id.

      Hernandez-Sustaita next challenges the sufficiency of the evidence against

him. Although he concedes that the government proved that he “entered” the

United States, he claims that the government did not provide evidence that he

“remained” in the United States. He argues that because he was arrested while

attempting to leave the United States without luggage, and because the government

could not show exactly when he entered after his April 2009 deportation, he could

have entered and immediately decided to return to Mexico, thereby negating the

“remained” requirement. There is evidence, however, that Hernandez-Sustaita did

not cross the border immediately preceding his arrest, including the large amounts

of cash found on his person and his admission that he had been working in the


                                          3
fields in California for a year. Sufficient evidence supports his conviction. See

United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995) (a

conviction cannot be reversed “unless there is a clear showing as to insufficiency”

and the court of appeals “must affirm if any rational trier of fact could have found

the evidence sufficient.”).

      Finally, Hernandez-Sustaita’s substantive reasonableness argument as to his

sentence boils down to this: Congress did not intend to punish, as illegal re-

entrants, those leaving the United States. He argues that a shorter sentence will

create incentives for others to leave as no deterrence function is served by

incarcerating undocumented immigrants attempting to leave the United States.

The district court sentenced Hernandez-Sustaita to 38 months in prison, far below

the Guideline range of 92 to 15 months. This sentence was not substantively

unreasonable, particularly in light of his prior conviction for possession of

marijuana with intent to distribute, five immigration offenses, and three felony

re-entry convictions. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

(en banc); see also United States v. Simmons, 485 F.3d 951, 955 (7th Cir. 2007)

(“[i]t is hard to conceive of below-range sentences that would be unreasonably

high.” (quotation marks omitted)).

      AFFIRMED.


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