     Case: 10-30992     Document: 00511635860         Page: 1     Date Filed: 10/18/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 18, 2011
                                       No. 10-30992
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRENANDO VALDEZ-LOPEZ, also known as Frenando Valez Lopez, also
known as Frenando Valdez, also known as Fernando Valdez, also known as Jose
Valdez, also known as Jose Valdez Lopez, also known as Fernando Valdez Lopez,
also known as Fernando Valdez-Lopez, also known as Jose Valdez-Lopez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-327


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        A jury convicted Frenando Valdez-Lopez of fraud and misuse of a
permanent resident card, as well as illegal reentry after deportation. On appeal,
he contends that the district court abused its discretion in refusing to give his
proposed instruction regarding the alienage element of the illegal-reentry
offense. After reviewing his claim, we AFFIRM his conviction.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-30992   Document: 00511635860      Page: 2   Date Filed: 10/18/2011

                                  No. 10-30992


                                        I.
      Following a jury trial, Mr. Valdez-Lopez was found guilty of fraud and
misuse of a permanent resident card in violation of 18 U.S.C. § 1546(a), and of
illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). On September
23, 2010, he was sentenced to concurrent 78-month terms of imprisonment and
to concurrent three-year periods of supervised release. He timely appealed. At
issue on appeal is whether the jury should have been instructed that a “natural-
born citizen” could be a person who was born abroad to a citizen parent.
      On September 24, 2009, Immigration and Customs Enforcement (ICE)
agent Wilbert Spooner, Jr., encountered the defendant in Hammond, Louisiana.
The defendant told the agent he was from Mexico but had a lawful permanent
resident card. Agent Spooner called in the card number and discovered it was
registered to an El Salvadoran female.       Agent Spooner testified that the
defendant admitted buying the card in a Wal-Mart parking lot for $100. Agent
Spooner also took the defendant’s fingerprints and submitted them to a central
fingerprint database. The database returned a positive match for the defendant
and revealed that he had been deported in February 2007. According to Agent
Spooner’s testimony, after he gave the defendant a Miranda statement in
Spanish, the defendant voluntarily told him he was a Mexican citizen and had
been born in Mexico.
      During Mr. Valdez-Lopez’s trial, Government witness Judy Bouligny, the
district records manager for the United States Citizenship and Immigration
Services (a component of the Department of Homeland Security), testified that
her records search had turned up no record of an application by Mr. Valdez-
Lopez for citizenship or other legal status. She admitted on cross-examination
that the Department of Homeland Security did not have registration records of
children born abroad to United States citizens. Such records are kept by the
State Department, and she did not have access to them.

                                        2
   Case: 10-30992   Document: 00511635860      Page: 3   Date Filed: 10/18/2011

                                 No. 10-30992

      Later in the trial, the government called ICE special agent Ryan Maher,
who testified that he ran six combinations of birthdates and variants of the
defendant’s name in the State Department’s consular consolidated database.
His search returned no results. The name variants that Maher checked included
those on the defendant’s fingerprint cards. Maher did not check two name
variants (Frenando Valdez-Lopez and Jose Valdez-Lopez) under which the
defendant was indicted and arrested, respectively. Maher’s searches checked for
visas and passports; they did not check for consular reports of birth. Maher
testified that he could not conclude from his searches that the defendant was not
a U.S. citizen.
      The defendant did not testify at trial, and the defense called no witnesses.
      In light of Bouligny and Maher’s testimony, the defendant submitted a
proposed jury instruction on derivative citizenship to supplement Fifth Circuit
Pattern Jury Instruction 2.05. The pattern jury instruction explains that, to
convict a defendant of illegal reentry following deportation, the jury must find
beyond a reasonable doubt that the defendant was an alien at the time alleged




                                        3
   Case: 10-30992            Document: 00511635860          Page: 4     Date Filed: 10/18/2011

                                            No. 10-30992

in the indictment.1 To the pattern instruction, Mr. Valdez-Lopez sought to add
several statements, including the following on derivative citizenship:
          Derivative citizenship may be conferred upon a person born outside
          of the United States if the applicant has at least one parent who is
          a United States citizen, and the citizen parent had met certain US
          residency requirements in effect at the time of the birth.
          The district court refused to give the defendant’s proposed instruction. It
explained that the portion regarding derivative citizenship relied on a non-
criminal case in which the First Circuit stated that, in making a derivative
citizenship determination, courts must look to the law in effect at the time of the
putative citizen’s birth.2 The court noted that the defendant made no showing
of the law in effect at the time of his birth and so rejected that portion of the jury
charge as “not sufficient.”
          Defense counsel argued that the court’s charge, as it was then amended
only by the Government’s supplemental instruction, was misleading in stating




          1
              The full text of Pattern Jury Instruction 2.05 follows.

                 Title 8, United States Code, Section 1326(a), makes it a crime for an
          alien to enter [to be found within] the United States without consent of the
          Attorney General to apply for readmission after being deported.
                 For you to find the defendant guilty of this crime, you must be convinced
          that the government has proved each of the following beyond a reasonable
          doubt:
                 First: That the defendant was an alien at the time alleged in the
          indictment;
                 Second: That the defendant had previously been denied admission
          [excluded] [removed] [deported] from the United States;
                 Third: That thereafter the defendant knowingly entered [was found in]
          the United States; and
                 Fourth: That the Defendant had not received the consent of the Attorney
          General of the United States to apply for readmission to the United States since
          the time of the defendant’s previous deportation.

Fifth Circuit Pattern Jury Instruction (Criminal) 2.05 (2001).
          2
              See Leal Santos v. Mukasey, 516 F.3d 1, 2 n.1 (1st Cir.), cert. denied, 555 U.S. 839
(2008).

                                                    4
   Case: 10-30992   Document: 00511635860      Page: 5   Date Filed: 10/18/2011

                                  No. 10-30992

that “[a]ll persons born or naturalized in the United States, are citizens of the
United States.” Defense counsel argued,
      by taking the derivative citizenship out, then what happens in this
      paragraph, it only suggests that you can be born in the United
      States or be naturalized to become a citizen and that is an incorrect
      statement of the law because you can be born outside the territory
      of the United States and still be a citizen of the United States. And
      that, to me, is not in this instruction and it’s confusing to the jury
      because as you said the Court well noted that there has been
      testimony that you can be born outside the United States and still
      be a citizen of the United States.
The court responded that it would remove the confusing language because the
pattern instruction was sufficient. The court explained again the problem with
the defendant’s proposed instruction:
      The provision you provided was derivative citizenship may be
      conferred upon a person born outside of the United States if the
      applicant has at least one parent who is a United States citizen and
      the citizen parent had met certain U.S. residency requirements in
      effect at the time of the birth. Y’all gave me nothing with respect to
      what that means. The jury would read that and not know what
      those residency requirements were.
Defense counsel noted that the proposed instruction had been prepared with the
Government’s assistance, and that the attorneys had discovered in studying the
pertinent statute, 8 U.S.C. § 1401, that the problems in interpreting it were
“extensive” because the law had changed on a regular basis. The district court
ruled that it would give the pattern instruction only. At the request of both the
government and the defendant, the district court also instructed the jury that
      an alien is any person who is not a natural born or naturalized
      citizen, or a national of the United States. The term national of the
      United States includes not only a citizen of the United States but
      also a person who, though not a citizen of the United States, owes
      permanent allegiance to the United States.
      Mr. Valdez-Lopez argues on appeal that the district court abused its
discretion in refusing to give his proposed instruction regarding derivative



                                        5
   Case: 10-30992         Document: 00511635860         Page: 6     Date Filed: 10/18/2011

                                         No. 10-30992

citizenship. He contends that the jury should have been instructed that a
“natural-born citizen” could be a person who was born abroad to a citizen parent.


                                                II.
       This Court reviews a district court’s jury instructions for an abuse of
discretion, “‘affording substantial latitude to the district court in describing the
law to the jury.’”3 In considering whether the district court abused its discretion,
this Court considers “‘whether the charge, as a whole, was a correct statement
of the law and whether it clearly instructed the jurors as to the principles of the
law applicable to the factual issues confronting them.’”4 A defendant is generally
entitled to an instruction on a recognized defense for which evidentiary support
is present,5 but that entitlement is not absolute. This court will reverse the
district court’s refusal to give a proposed jury instruction
       “only if the requested instruction (1) was a substantially correct
       statement of the law, (2) was not substantially covered in the charge
       as a whole, and (3) concerned an important point in the trial such
       that the failure to instruct the jury on the issue seriously impaired
       the defendant’s ability to present a given defense.”6
       The defendant concedes that the district court instructed the jury about
the meaning of the term “alien” as including anyone who is not a “natural-born
or naturalized citizen, or a national of the United States.” He argues, however,
that the district court failed to instruct the jury about the meaning of the term
“natural-born citizen,” and as a result, he contends, the district court’s


       3
         United States v. Wright, 634 F.3d 770,774 (5th Cir. 2011) (quoting United States v.
Williams, 610 F.3d 271, 285 (5th Cir. 2010)), cert. denied, No. 10-10783, 2011 WL 4531377
(Oct. 3, 2011).
       4
           Id. (quoting United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009)).
      5
        United States v. Mata, 491 F.3d 237, 241 (5th Cir. 2007) (citing United States v.
Maseratti, 1 F.3d 330, 336 (5th Cir. 1993)), cert. denied, 552 U.S. 1189 (2008).
       6
        634 F.3d at 775 (quoting Cooper Indus., Inc. v. Tarmac Roofing Sys., Inc., 276 F.3d
704, 714 (5th Cir. 2002)).

                                                6
   Case: 10-30992         Document: 00511635860         Page: 7    Date Filed: 10/18/2011

                                         No. 10-30992

instruction would mislead a lay person to think the term “citizen” refers only to
native-born or naturalized citizens. He argues that lay persons would not
understand a “derivative citizen” to fit within the term “natural-born citizen.”
The defendant’s position is that the district court needed to instruct the jury on
the existence of derivative citizenship, but not on the specific residency
requirements of citizen parents when he was born.7 The Government responds
that the defendant’s proposed instruction was inaccurate and incomplete
because it did not specify those residency requirements.
       We find that the district court did not abuse its discretion in refusing to
give the defendant’s proposed jury instruction. “It is well-settled that a district
court does not err by giving a charge that tracks this Circuit’s pattern jury
instructions and that is a correct statement of law.”8 The district court’s
instruction, which incorporated the pattern instruction in full, gave the elements
of illegal reentry after deportation and also provided definitions of those
elements. The instructions were clear and correct statements of the law9 that
“adequately and fairly covered the issues presented in the case.”10
       Moreover, the defendant was not entitled to an instruction on derivative
citizenship because there was no evidentiary basis for that defense.                        “A
defendant is entitled to an instruction on a recognized defense for which there
exists evidence sufficient for a reasonable jury to find in his favor.”11 In this


       7
        Mr. Valdez-Lopez does not contend on appeal, as he did in the district court, that the
Government’s evidence was insufficient to show he was an alien. Accordingly, this argument
is waived. See United States v. Musa, 45 F.3d 922, 925 (5th Cir. 1995).
       8
        United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009), cert. denied, 131 S. Ct.
136 (2010).
       9
        See United States v. Martinez-Cantu, 138 F. App’x 641, 642 (5th Cir. 2005) (per
curiam) (unpublished) (listing the elements of an illegal reentry after deportation offense).
       10
            United States v. Turner, 960 F.2d 461, 464 (5th Cir. 1992).
       11
         United States v. Mata, 491 F.3d 237, 241 (5th Cir. 2007) (citing United States v.
Maseratti, 1 F.3d 330, 336 (5th Cir. 1993)), cert. denied, 552 U.S. 1189 (2008).

                                                7
   Case: 10-30992      Document: 00511635860         Page: 8    Date Filed: 10/18/2011

                                      No. 10-30992

case, the defendant does not meet even that threshold inquiry. He presented no
evidence whatsoever showing that he is entitled to derivative citizenship. The
defendant’s statement to Agent Spooner that he is a Mexican citizen (without
any mention of dual citizenship), along with Government exhibits from the
defendant’s alien file, provided ample evidence to the contrary. The proposed
instruction was wholly “without foundation in the evidence,” and thus the
district court did not abuse its discretion in refusing it.12


                                            III.
       For the foregoing reasons, the judgment is AFFIRMED.




       12
        United States v. Robinson, 700 F.2d 205, 211 (5th Cir. 1983), cert. denied, 465 U.S.
1008 (1984).

                                             8
