                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 15-10009
                  Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          4:14-cr-00772-
                                                  RCC-CRP-1
 ROSARIO VAZQUEZ-HERNANDEZ,
 AKA Jose Alfredo Jimenez-Valdez,
               Defendant-Appellant.


         Appeal from the United States District Court
                  for the District of Arizona
        Raner C. Collins, Chief District Judge, Presiding

          Argued and Submitted September 12, 2016
                  San Francisco, California

                      Filed March 3, 2017

 Before: Ronald M. Gould and Marsha S. Berzon, Circuit
  Judges, and William K. Sessions, III, * District Judge.

                  Opinion by Judge Sessions



    *
       The Honorable William K. Sessions III, United States District
Judge for the District of Vermont, sitting by designation.
2         UNITED STATES V. VAZQUEZ-HERNANDEZ

                          SUMMARY **


                          Criminal Law

    The panel vacated a conviction for attempted illegal
reentry under 8 U.S.C. § 1326 and remanded for entry of a
judgment of acquittal.

    The panel held that the district court committed plain
error affecting the defendant’s substantial rights by failing to
instruct the jury that in order to be found guilty of attempted
illegal reentry the defendant must have had the specific
intent to reenter the United States free from official restraint.

    The panel held that even if the jury applied the correct
legal standard, no rational trier of fact could have found the
essential elements of attempted illegal reentry beyond a
reasonable doubt. The panel wrote that if properly instructed
on the official restraint doctrine, no rational jury could have
concluded beyond a reasonable doubt that the defendant was
free from official restraint in the pre-inspection area, or that
he intended to be simply by entering that area. The panel
wrote that there is likewise insufficient evidence in the
record to support the defendant’s guilt on the theory that he
intended to go beyond the pre-inspection area so as to be free
to go at large and at will within the United States.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
         UNITED STATES V. VAZQUEZ-HERNANDEZ                 3

                        COUNSEL

Henry L. Jacobs (argued), Law Offices of Henry Jacobs
PLLC, Tucson, Arizona, for Defendant-Appellant.

Erica Anderson McCallum (argued) and Elizabeth
Berenguer, Assistant United States Attorneys; Robert L.
Miskell, Appellate Chief; John S. Leonardo, United States
Attorney, United States Attorney’s Office, Tucson, Arizona;
for Plaintiff-Appellee.


                         OPINION

SESSIONS, District Judge:

    Defendant-appellant     Rosario      Vazquez-Hernandez
appeals his conviction for attempted illegal reentry under
8 U.S.C. § 1326 on the ground that there was insufficient
evidence to support his conviction. Vazquez-Hernandez also
notes that the district court’s instruction at trial failed to
properly inform the jury of the essential elements of the
offense.

    The lack of an instruction to the jury that Vazquez-
Hernandez had to have a conscious desire to reenter the
United States free from official restraint to be found guilty
of the crime of attempted illegal reentry was plain error.
Moreover, we conclude that even if the jury applied the
correct legal standard, the trial record provides insufficient
evidence to allow any rational trier of fact to find the
essential elements of attempted illegal reentry beyond a
reasonable doubt. Therefore, we vacate Vazquez-
Hernandez’s conviction and remand to the district court to
enter a judgment of acquittal.
4        UNITED STATES V. VAZQUEZ-HERNANDEZ

                       I. Background

    Prior to his conviction, Vazquez-Hernandez, a citizen of
Mexico, frequently earned money washing car windows at
the Mariposa port of entry into the United States in Nogales,
Arizona. The U.S. inspection station at the Mariposa port of
entry lies on U.S. territory, about 100 yards north of the
border with Mexico. As a result, the United States invites
foreign nationals and U.S. citizens traveling in vehicles to
enter U.S. territory prior to their inspection by immigration
officials. Pedestrians are invited to enter the pre-inspection
area through a separate, designated lane, and are generally
not permitted in the vehicle lanes for safety reasons. U.S.
Border Patrol agents have on occasion, however, permitted
individuals they presume to be U.S. citizens to enter the
northbound vehicle lanes on foot. Although also not
officially permitted, vendors and window washers
commonly enter the pre-inspection area from Mexico on
foot, touting their wares and services to stopped vehicles.

     The pre-inspection area is walled off on all sides except
at the U.S. border with Mexico and at the Mexican and U.S.
inspection points, and is monitored by hundreds of U.S.
government cameras. United States “outbound operations”
officers, armed with automatic rifles, monitor southbound
lanes north of the Mexican government’s inspection points.
Law enforcement agents stationed at the border sometimes
screen individuals entering the pre-inspection area for those
who could pose a safety threat and prevent them from
entering the pre-inspection area.

    Subject to this intermittent screening and control, foreign
nationals enter the pre-inspection area on U.S. territory on a
daily basis, either in vehicles or on foot. Occasionally, U.S.
Border Patrol agents attempt to arrest and detain individuals
present on foot in the pre-inspection area who the agents
         UNITED STATES V. VAZQUEZ-HERNANDEZ                 5

believe, based on their behavior and appearance, do not
“have legal status” in the United States, without inquiring
about their intent to go past the port of entry. When
approached by Border Patrol agents, vendors and other
individuals who do not intend to enter the United States
beyond the pre-inspection area often flee the pre-inspection
area and return to the Mexican side of the border. Pedestrians
attempting to enter the United States without inspection
sometimes run up the southbound lanes, bypassing the U.S.
inspection points.

    Before his arrest and conviction in 2014, Vazquez-
Hernandez was previously removed from the United States
three times, and was once previously convicted of illegal
reentry. He was first removed in 2005, before he began his
window-washing work. Since he began working at the
Mariposa port of entry, he has twice been arrested in the pre-
inspection area and subsequently deported, in 2010 and
2013. After his 2010 arrest, he was charged with illegal
reentry and pled guilty to the offense.

    Around the time he was arrested in 2014, Vazquez-
Hernandez entered the pre-inspection area at the Mariposa
port of entry to wash windows almost every day, including
on the weekends and in the afternoons and evenings. On
April 5, 2014, two Border Patrol agents, Agent Adam Erfert
and Joshua Thomas, saw Vazquez-Hernandez on
surveillance cameras. The agents testified at trial that they
became suspicious of Vazquez-Hernandez’s intentions
because he appeared to be looking around and monitoring
his environment, and because of his attentiveness and
proximity to the southbound vehicle lanes. The two agents
approached Vazquez-Hernandez and, despite Vazquez-
Hernandez’s efforts to evade the agents’ grasp, arrested him.
Vazquez-Hernandez was eventually charged with attempted
6          UNITED STATES V. VAZQUEZ-HERNANDEZ

illegal reentry in violation of 8 U.S.C. § 1326 in a
superseding indictment returned on October 1, 2014. The
case proceeded to trial.

   At trial, the district court judge instructed the jury on the
elements of the offense of illegal reentry in the following
manner:

         [T]he government must prove each of the
         following elements beyond a reasonable
         doubt: First, the defendant was removed
         and/or deported from the United States;
         second, the defendant had the conscious
         desire to reenter the United States without
         consent; third, the defendant was an alien at
         the time of his attempted reentry into the
         United States; fourth, the defendant had not
         obtained the consent of the Attorney General
         or the Secretary of the Department of
         Homeland Security to reapply for admission
         into the United States; and fifth, the
         defendant did something that was a
         substantial step toward committing the crime.

    During the course of argument for a directed verdict, and
outside the presence of the jury, the judge stated to counsel
that the only question at issue was the defendant’s intent. 1


    1
      Crossing the United States border from Mexico is a substantial step
towards the commission of attempted illegal reentry. United States v.
Leos-Maldonado, 302 F.3d 1061, 1063–64 (9th Cir. 2002). Because
Vazquez-Hernandez acknowledged that he had formally crossed the
border to enter into the pre-inspection area, the district court instructed
the parties not to focus on the “substantial step” element of the charged
offense.
           UNITED STATES V. VAZQUEZ-HERNANDEZ                            7

    After receiving the instruction on the elements of
attempted illegal reentry, the jurors expressed confusion
about the intent requirement. The jurors asked, “Does, as a
matter of [l]aw, illegal reentry into the United States include
the element of intent to stay in the United States? Or is there
no mention of such intent in the statute?” In response, the
court referred the jurors to the instruction it had already
given on the elements of the offense. Vazquez-Hernandez
did not object to the instructions at trial.

   On October 8, 2014, the jury convicted Vazquez-
Hernandez of attempted illegal reentry, the sole count in the
superseding indictment. On December 18, 2014, the district
court sentenced Vazquez-Hernandez to 40 months of
imprisonment followed by three years of supervised release
and imposed a $100 special assessment. Vazquez-
Hernandez filed this timely appeal.

                            II. Discussion

A. Improper jury instruction

    Although this Court generally reviews a jury instruction
that misstates the elements of a statutory crime de novo, we
review an instruction for plain error in the absence of a
timely objection to it below. 2 United States v. Kilbride,

    2
      Although Vazquez-Hernandez did not independently challenge the
jury instruction on appeal, he did maintain that the instruction was
erroneous, as part of his argument that no jury could have determined
that he entered the United States free from official restraint, as required
by law. Whether the validity of the instruction was adequately raised on
appeal is debatable. In any event, although we typically refrain from
addressing issues that neither party properly raised on appeal, we may
do so in cases of a plain error that affects substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P. 52(b). We
8          UNITED STATES V. VAZQUEZ-HERNANDEZ

584 F.3d 1240, 1247 (9th Cir. 2009). In order to conclude
that plain error exists, we must find “(1) an error that is
(2) plain and (3) affects substantial rights.” Id. (quoting
United States v. Peterson, 538 F.3d 1064, 1071 (9th Cir.
2008)). Where these conditions are met, “we may only
exercise our discretion to correct the error if it seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting Peterson, 538 F.3d at 1072).

    i. Plain error

    The district court’s failure to include an instruction on
freedom from official restraint at summation constituted
plain error. The Fifth and Sixth Amendments require
criminal convictions to rest upon a jury determination that
the defendant is guilty of every element of the crime with
which he is charged beyond a reasonable doubt. United
States v. Gaudin, 515 U.S. 506, 509–10 (1995). Jury
instructions misstate the essential elements of an offense
when they do not adequately link the intent element of a
crime with the required object of that intent. See United
States v. Montoya-Gaxiola, 796 F.3d 1118, 1122–24 (9th
Cir. 2015) (finding plain error because jury instruction did
not specify that, where defendant was charged with
possession of an unregistered firearm, the jury must find that
the defendant knew of the features of his weapon that

exercise our discretion to address these types of errors if the error
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Olano, 507 U.S. at 736 (quoting United States v. Atkinson,
297 U.S. 157, 160 (1936)). Since the standard by which we review this
jury instruction on the merits aligns precisely with this preliminary
question under Federal Rule of Criminal Procedure 52(b), we conclude
that we have the power to review the instructions for the same reasons
that we provide for correcting the instructions in this case. See infra, 16
n.4.
         UNITED STATES V. VAZQUEZ-HERNANDEZ                  9

brought it within the definition of a firearm under the
criminal statute, rather than knowing that he had a weapon
which happened to have such features, unbeknown to the
defendant); United States v. Cherer, 513 F.3d 1150, 1155
(9th Cir. 2008) (finding error in jury instructions regarding
the elements of a sex crime committed towards a minor
where the instruction failed to appropriately connect the
requisite state of mind, knowledge, with the statute’s object,
a minor victim).

    The crime of attempted illegal reentry under 8 U.S.C.
§ 1326 is a specific intent crime that requires proof beyond
a reasonable doubt that the defendant had “the specific intent
‘to reenter without consent.’” United States v. Lombera-
Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005) (quoting
United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th
Cir. 2002)). For the purposes of § 1326, “entry” has a distinct
legal meaning: “[a]n alien has not entered the United States
under § 1326 unless he does so ‘free from official restraint.’”
Id. at 928 (quoting United States v. Gracidas-Ulibarry,
231 F.3d 1188, 1191 n.3 (9th Cir. 2000) (en banc)).
Accordingly, to convict a defendant of attempted illegal
reentry, the Government must “prove beyond a reasonable
doubt that [the defendant] crossed into the United States with
the specific ‘intent to enter the country free from official
restraint.’” United States v. Argueta-Rosales, 819 F.3d 1149,
1156 (9th Cir. 2016) (quoting Lombera-Valdovinos,
429 F.3d at 928).

    The jury instructions here omitted this element of
attempted illegal reentry. The district court instructed the
jury only that it must find that Vazquez-Hernandez “had the
conscious desire to reenter the United States without
10         UNITED STATES V. VAZQUEZ-HERNANDEZ

consent,” making no mention of the intent to be free from
official restraint. This was plain error. 3

    Gracidas-Ulibarry is not to the contrary. There, this
Court held that “an explanation of the meaning of specific
intent is necessary to give guidance as to the proper jury
instruction for” attempted illegal reentry. Gracidas-
Ulibarry, 231 F.3d at 1195. Although Gracidas-Ulibarry
did not specifically explain that § 1326 requires proof that
the defendant attempt to enter “free from official restraint,”
there was no dispute concerning whether the defendant in
that case was under official restraint, or whether he intended
to proceed past the border checkpoint. See id. at 1191. Here,
in contrast, greater elaboration on the specific intent
requirement was necessary because the conditions of the pre-
inspection area at the Mariposa port of entry, combined with

     3
       This case does not involve a failure to define a term that was within
the comprehension of the average juror. United States v. Tirouda,
394 F.3d 683, 688–89 (9th Cir. 2005), as amended on denial of reh'g and
reh’g en banc (July 13, 2005) (“Whether a term in a jury instruction
requires definition normally turns on whether it expresses a concept
within the jury's ordinary experience. No prejudice results from a district
court’s failure to define a concept within the comprehension of the
average juror.”) (internal quotation omitted). The particular definition of
the term “entry” in the context of § 1326 evades a “general reading.” See
United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir. 2000)
(“[A] general reading would suggest that Pacheco did commit the crime
because he surely left Mexico for the United States, and he just as surely
was found on our soil after he came over the border fence. But as a matter
of law it is not quite that easy because physical presence is not enough.”).
It is improbable that an average juror could correctly understand and
apply the term “entry” in this context without a specific instruction that
illegal reentry requires intent to enter free from official restraint. Nor is
this a case in which the judge need not have instructed the jury to
determine a particular question regarding an element of the crime
because the judge was entitled to determine it himself as a matter of law.
See United States v. Mujahid, 799 F.3d 1228, 1236–37 (9th Cir. 2015).
         UNITED STATES V. VAZQUEZ-HERNANDEZ                   11

Vazquez-Hernandez’s assertion that he did not intend to
proceed beyond the inspection points, created ambiguity
about Vazquez-Hernandez’s intent to reenter free from
official restraint.

     Likewise, our cases finding no error in the omission of a
jury instruction on freedom from official restraint when the
defendant was “found in” the United States in violation of
§ 1326 do not govern here. See e.g., United States v.
Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir. 2001)
(declining to require a trial judge to instruct a jury on the
“free from official restraint” requirement for entry in a case
alleging that the defendant was “found in” the United States
in violation of § 1326, where the defendant did not point to
evidence that would suggest that his entry was not free from
official restraint). But see United States v. Bello-Bahena,
411 F.3d 1083, 1088–91 (9th Cir. 2005) (remanding for new
trial where trial judge failed to offer the defendant’s jury
instruction regarding “free from official restraint” at trial for
being “found in” the United States in violation of § 1326,
where defendant’s theory that he was not free from official
restraint because he was subject to constant surveillance had
a basis in the evidence). We have long recognized that
“§ 1326 sets forth three distinct offenses: ‘enter,’ ‘attempt to
enter,’ and ‘found in.’” United States v. Pacheco-Medina,
212 F.3d 1162, 1165 (9th Cir. 2000). Although “an entry, as
defined legally, is required before a person is ‘found in’ the
United States,” id. at 1166, “the Government does not need
to charge or prove voluntary entry in a § 1326 ‘found in’
offense.” United States v. Rivera-Sillas, 417 F.3d 1014,
1018–19 (9th Cir. 2004), amended (9th Cir. 2005).
Accordingly, because the elements that the government is
required to prove in “found in” cases are not directly parallel
to those required to prove attempted illegal reentry, our
precedents finding no error where jury instructions did not
12       UNITED STATES V. VAZQUEZ-HERNANDEZ

describe the “free from official restraint” requirement in
“found in” cases do not bear on the necessary instructions
for attempted illegal reentry cases.

     ii. The error affected           Vazquez-Hernandez’s
         substantial rights

    The lack of a jury instruction regarding freedom from
official restraint affected Vazquez-Hernandez’s substantial
rights. An error affects substantial rights if there is “a
reasonable probability that the error affected the outcome of
the trial.” United States v. Marcus, 560 U.S. 258, 262 (2010).
In determining the likelihood that an erroneous instruction
affected the outcome of a trial, “[w]e review the jury
instructions as a whole, not only the erroneous instructions.
We may also examine the arguments made by the parties.”
United States v. Garrido, 713 F.3d 985, 995 (9th Cir. 2013)
(internal quotation and citation omitted). Moreover, where a
jury instruction permits a conviction on either of two
alternative theories, one of which is later found to be
unconstitutional, the error affects the defendant’s substantial
rights if there is a reasonable probability that the jury
convicted the defendant on the invalid theory. Id.

    Here, the government advanced two theories of guilt at
summation. The district court’s instructions permitted the
jury to convict Vazquez-Hernandez on either of those
theories. Specifically, the government argued that the jury
could convict Vazquez-Hernandez if it found that “he had
the purpose of illegally reentering the United States, whether
it was to make a little money from his window washing
business or to scout for traffickers or flee north in the
southbound lanes.” Thus, the prosecution indicated that
either entry into the pre-inspection area with the intent to
wash windows and then return to Mexico, or entry with the
intent to move into the United States past the points of
         UNITED STATES V. VAZQUEZ-HERNANDEZ                   13

inspection, would constitute an “entry” within the meaning
of the intent element of the crime.

     Our case law clearly does not support the first of those
theories. First, the official restraint doctrine was intended to
safeguard the presence of uninspected immigrants in
precisely the type of area in to which Vazquez-Hernandez
entered and where he remained. The freedom from official
restraint requirement addresses the practical concern that
failing to require such a finding would lead to the
criminalization of individuals who arrive at a port of entry
but have not yet had an opportunity to apply for inspection.
See Argueta-Rosales, 819 F.3d at 1160 (“[T]he official
restraint doctrine is a practical necessity . . . . We doubt that
Congress intended to make criminals out of persons who, for
any number of reasons, approach immigration officials at the
border.”); United States v. Vasilatos, 209 F.2d 195, 197 (3rd
Cir. 1954) (explaining that because “in a literal and physical
sense a person coming from abroad enters the United States
whenever he reaches land, water or air space within the
territorial limits of this nation,” “freedom from official
restraint must be added to physical presence before entry is
accomplished”) (cited with approval in Argueta-Rosales,
819 F.3d at 1160). The pre-inspection area at the Mariposa
port of entry thus serves this function of allowing
uninspected foreign nationals to assemble to accomplish a
lawful entry.

    Second, an alien is not free from official restraint when
he is in an area that is subject to constant government
surveillance. Pacheco-Medina, 212 F.3d at 1165; United
States v. Aguilar, 883 F.2d 662, 681 (9th Cir. 1989),
superseded by statute on other grounds, P.L. No. 99-603,
100 Stat. 3359, as stated in United States v. Gonzalez-
Torres, 309 F.3d 594 (9th Cir. 2002) (“Continuous
14       UNITED STATES V. VAZQUEZ-HERNANDEZ

surveillance by immigration authorities can be sufficient to
place an alien under official restraint” for the purposes of
applying the definition of entry to the crime of illegally
bringing an alien into the United States). Here, the
government’s witnesses testified that the pre-inspection area
was subject to surveillance by hundreds of cameras, with
small blind spots, and was surrounded on all sides either by
walls or law enforcement agents.

    The only time that Vazquez-Hernandez was not under
direct camera surveillance was when Border Patrol Agents
Erfert and Thomas were approaching him, with knowledge
of his location. Such a minor gap in surveillance is not
sufficient to break an officer’s “continuous observation”
necessary to establish official restraint. United States v.
Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002) (finding
that where Border Patrol agent observed a defendant from
the moment he crossed the border, knew the trail on which
the defendant and others were walking, and only lost sight
of him “for a number of seconds,” the defendant was under
constant surveillance and therefore not free from official
restraint). Moreover, Vazquez-Hernandez’s attempt to evade
arrest by running from the agents is not sufficient to deem
him free from official restraint, because he was either subject
to camera surveillance or within the officer’s sight, or both,
at the time he ran. See Pacheco-Medina, 212 F.3d at 1163–
65 (finding no freedom from official restraint, and thus no
entry under § 1326, when alien was subject to surveillance
from the moment he crossed the border, even though he
immediately ran away from an agent and “gave chase” rather
than surrender to arrest).

    Finally, the touchstone to determining whether a
defendant is free from official restraint is whether the
defendant was free to “go at large and at will within the
         UNITED STATES V. VAZQUEZ-HERNANDEZ                   15

United States.” Id. at 1164 (quoting Ex parte Chow Chok,
151 F. 627, 630 (N.D.N.Y.), aff’d, 163 F. 1021 (2d Cir.
1908)); see Gonzalez-Torres, 309 F.3d at 598. There is no
doubt in this case that Vazquez-Hernandez was not free to
travel at will beyond the points of inspection. The area was
largely walled off from U.S. territory not subject to such
surveillance and monitored by Border Patrol agents who
attempted to stop individuals from proceeding into the
United States without inspection. Therefore, given this
evidence on the conditions of the pre-inspection area, no
rational jury could have concluded beyond a reasonable
doubt that Vazquez-Hernandez was free from official
restraint in this area, or that he intended to be by entering it.
Accordingly, the jury could not properly have sustained a
conviction on this theory if it had been adequately instructed.

    As we explain later, see pp. 18–20, the evidence that
Vazquez-Hernandez intended to flee northward rather than
stay in the pre-inspection area was exceedingly weak. Also,
the jury’s question to the judge indicated that its focus was
on the first prosecution theory, concerning defendant’s
simple presence in the pre-inspection area. If the jury was
focusing on the second theory, that the defendant intended
to jump the fence and run north across the border, it would
not have asked about intent to stay in the United States. It is
therefore reasonably likely that the jury found that Vazquez-
Hernandez only intended to enter the pre-inspection area,
and, in reaching its verdict, relied on the alternative theory
advanced by the prosecution and permitted by the inadequate
jury instruction that Vazquez-Hernandez could be convicted
with this more limited intent. In fact, the evidence did not
establish that by intending to enter the pre-inspection area,
Vazquez-Hernandez intended to enter free from official
restraint, as would be required to convict him on that theory.
Accordingly, there is a reasonable probability the erroneous
16        UNITED STATES V. VAZQUEZ-HERNANDEZ

instruction, which permitted the jury to rely on a theory it
should have discarded, impacted the outcome of the trial.
Thus, the error affected Vazquez-Hernandez’s substantial
rights.

     iii. Miscarriage of justice

    We exercise our discretion to correct the error in this case
because the jury’s possible reliance on a legally invalid
theory constitutes a miscarriage of justice which would
seriously affect “the fairness, integrity or public reputation
of judicial proceedings.” Garrido, 713 F.3d at 998 (finding
that upholding a conviction where “the indictment, the jury
instructions and the closing arguments at trial were
permeated with the prohibited . . . theory” and where neither
party argued their cases on a legally valid theory would
constitute a miscarriage of justice) (internal quotations
omitted). Permitting a conviction for attempted illegal
reentry based on the intent to enter into only the pre-
inspection area would undermine the fairness of our nation’s
inspection procedures and jeopardize the integrity of
convictions sustained by courts presiding over border
inspection areas. These pre-inspection areas have been
established to facilitate our country’s inspection procedures.
Allowing law enforcement discretion to initiate a criminal
process against some foreign nationals for crossing the
border into this area without enunciating the intent to evade
official surveillance could undermine the purpose of the
illegal reentry statute.

    For these reasons, the omission of the freedom from
official restraint requirement from the jury instruction
           UNITED STATES V. VAZQUEZ-HERNANDEZ                          17

constitutes plain error affecting Vazquez-Hernandez’s
substantial rights. 4 We reverse.

B. Insufficient evidence to support the jury’s verdict

    Vazquez-Hernandez argues that there is insufficient
evidence to support his conviction for attempted illegal
reentry, a claim which, “if successful, would entitle him to a
judgment of acquittal.” See United States v. Shetler,
665 F.3d 1150, 1161 (9th Cir. 2011) (citing United States v.
Williams, 547 F.3d 1187, 1195 (9th Cir. 2008)). Claims of
insufficient evidence to support a jury verdict are reviewed
de novo. United States v. Antonakeas, 255 F.3d 714, 723 (9th
Cir. 2001). Evidence supporting a conviction is sufficient if,
“viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). Vazquez-Hernandez’s claim that the district court
erred in denying his motion for judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29 is also
reviewed de novo. Castellanos-Garcia, 270 F.3d at 775.

    We conclude that no rational trier of fact properly
instructed on the elements of the crime could have found that
Vazquez-Hernandez possessed the required mens rea for
attempted illegal reentry beyond a reasonable doubt. To be
guilty, Vazquez-Hernandez must have intended to enter the
United States free from official restraint and without the
consent of the Attorney General.

    4
       For these same reasons, we exercise our discretion to review the
jury instruction, notwithstanding that Vazquez-Hernandez did not
directly raise the issue in his opening brief before this court. See Olano,
507 U.S. at 732, 736; see supra, pp. 7–8 n. 2.
18       UNITED STATES V. VAZQUEZ-HERNANDEZ

    As discussed above, if properly instructed on the official
restraint doctrine, no rational jury could have concluded
beyond a reasonable doubt that Vazquez-Hernandez was
free from official restraint in the pre-inspection area, or that
he intended to be simply by entering that area.

    Likewise, there is insufficient evidence in the record to
support Vazquez-Hernandez’s guilt on the theory that he
intended to go beyond the pre-inspection area so as to be free
to go at large and at will within the United States. The
testimony of Agents Erfert and Thomas as to their
observations and beliefs about Vazquez-Hernandez’s
intentions is insufficient to prove beyond a reasonable doubt
that Vazquez-Hernandez intended to proceed outside the
pre-inspection area. In particular, Agent Erfert stated that
Vazquez-Hernandez appeared to be “really worried about
who was around him and what’s going on,” and Agent
Thomas stated that Vazquez-Hernandez looked over the wall
dividing the northbound and southbound lanes once and that
he looked distracted while washing windows.

    Vazquez-Hernandez could have looked around
cautiously to avoid arrest even if he did not intend to dart
northward past the pre-inspection area on the southbound
lanes. Vazquez-Hernandez had been arrested and convicted
for washing windows in the pre-inspection area before, and
it would be logical for him to want to avoid the possibility
of another conviction.

    Consistent with Vazquez-Hernandez’s experience,
Agents Thomas and Erfert testified that they sometimes
attempt to arrest pedestrian vendors and window-washers
rather than warning them that they are not authorized in the
area. When approached, pedestrian vendors typically try to
avoid arrest by running back to the Mexican side of the
border. In light of these customary law enforcement
          UNITED STATES V. VAZQUEZ-HERNANDEZ                       19

practices, Vazquez-Hernandez’s apparent cautiousness was
not sufficiently probative of an intent to run north past the
pre-inspection area.

    Agent Erfert speculated that Vazquez-Hernandez was
attempting to see if there were any Border Patrol Agents in
the southbound lanes, and that individuals who attempt to
enter the United States past the pre-inspection area often do
so by running up the southbound lanes. 5 However, Vazquez-
Hernandez did not attempt to run northward past the
inspection points after he saw that the southbound lanes were
clear of law enforcement officers. Rather, he continued to
wash windows after looking over the wall cautiously.
Moreover, Agent Erfert testified that he never saw the
appellant attempt to jump any of the fences surrounding the
pre-inspection area that would lead into contiguous U.S.
territory.

    Circumstantial evidence also undermines the inference
that Vazquez-Hernandez intended to proceed past the
inspection points. On the day he was arrested, Vazquez-
Hernandez carried with him only the supplies necessary to
carry out window-washing activities. He had only a few
coins in his possession. Although Vazquez-Hernandez
entered the pre-inspection area around 7:30 p.m., when it
was starting to get dark, he did not enter under the full cover
of darkness. He also provided a plausible explanation for his
arrival at the pre-inspection area late in the day: that he came
to work after picking up his daughter from school. Although
the agents testified that Vazquez-Hernandez was wearing a
sweater or jacket, which one believed was unusual given the
warm weather, the inference that he was dressed for a long

    5
      In contrast, Agent Thomas testified that he did not know whether
the appellant’s intent was to go beyond the port of entry.
20       UNITED STATES V. VAZQUEZ-HERNANDEZ

journey is weak. The inference is similarly weak that,
because an agent saw Vazquez-Hernandez set a water bottle
down on the dividing wall on one occasion, Vazquez-
Hernandez was not using any water, and was not really there
to wash windows. We conclude, therefore, that no rational
juror could find beyond a reasonable doubt that Vazquez-
Hernandez intended to travel northward beyond the points of
inspection.

                       III. Conclusion

    In light of the foregoing analysis, we conclude that the
district court’s instruction failed to properly state the
essential elements of attempted illegal reentry and permitted
the government to advance, and the jury to convict on, an
invalid theory of guilt. This was plain error. Because we
further hold that no properly instructed, rational trier of fact
could find Vazquez-Hernandez guilty of the crime of
attempted illegal reentry, we reverse the defendant’s
conviction and remand to the district court to enter a
judgment of acquittal.

     REVERSED and REMANDED.
