                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2012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. 11-50037

              Plaintiff - Appellee,              D.C. No. 3:09-cr-04151-W-1

  v.
                                                 MEMORANDUM *
PASCUAL FRANCISCO-PASCUAL,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                           Submitted February 8, 2012 **
                              Pasadena, California

Before: D.W. NELSON, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.

       Pascual Francisco-Pascual (Francisco) appeals his jury conviction for illegal

reentry into the United States in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.


        *
             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).
      Generally, “a defendant is entitled to his proposed instruction even if his

evidence is weak, insufficient, inconsistent, or of doubtful credibility.” United

States v. Espinoza-Baza, 647 F.3d 1182, 1191 (9th Cir. 2011) (internal quotation

marks omitted). But while this standard is “somewhat generous,” the “trial record

must still contain evidence upon which the jury could rationally find for the

defendant.” Id. (internal quotation marks omitted). Thus, a defendant must present

something more than a mere “scintilla of evidence” of national status “to warrant a

defense instruction on that theory.” See id.; United States v. Sotelo, 109 F.3d 1446,

1448 (9th Cir. 1997).

      “All citizens of the United States are also nationals. However, some

nationals are not citizens.” Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967 (9th

Cir. 2003). We have held that “a person can become a ‘national of the United

States’ . . . only through birth or naturalization.” Id. at 972. Today, “the only

remaining noncitizen nationals are residents of American Samoa and Swains

Island.” Id. at 967 (quoting Miller v. Albright, 523 U.S. 420, 467 n.2 (1998)

(Ginsburg, J., dissenting)).

      Here, the district court did not abuse its discretion by following the Ninth

Circuit Model Jury Instructions and rejecting Francisco’s requested jury

instruction, because Francisco did not present even a mere “scintilla of evidence”


                                           2
of his status as a national of the United States. Francisco was born in Mexico.

Thus, Francisco could not have become a national of the United States through

birth, because he was not born as a citizen national in the United States or as a

noncitizen national in American Samoa or Swains Island. Also, Francisco did not

offer any evidence that he was a national of the United States through

naturalization. Francisco’s requested instruction, as the district court determined,

therefore lacked a factual foundation in the evidence. Put otherwise, “no jury

could have found [Francisco] to be a national.” See Sotelo, 109 F.3d at 1448.

      AFFIRMED.




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