* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T his case is therefore submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 23 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-6119 FELIPE JIMENEZ-ALCALA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. CR-02-178-T)

Submitted on the briefs: * Julia C. Summers, Assistant Federal Public Defender , Oklahoma City, Oklahoma, for Defendant-Appellant. Robert G. McCampbell, United States Attorney; RoziaMcKinney-Foster, Assistant United States Attorney, Oklahoma City, Ok lahoma, for PlaintiffAppellee.

Before TACHA , Chief Judge, McKAY and McCONNELL , Circuit Judges.-2-

McCONNELL , Circuit Judge.
Appellant Felipe Jimenez-Alcala was convicted on on e count of being an alien found in the United States, without the permi ssion of the Attorney General, after a previous deportation subsequent to a convic tion for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to 70 months’ imprisonment, with three years of supervised releas e and a $100 special assessment. He challenges this conviction and sent ence on three grounds: (1) an erroneous jury instruction on the meaning of the te rm “national,” (2) improper comments by prosecution witnesses, and (3) entitlem ent to a downward adjustment for acceptance of responsibility. We af firm the district court. Mr. Jimenez-Alcala was born in Mexico and brought t o the United States by his parents when he was ten years old. By his o wn account, while living in California he “sustained a number of misdemeanor an d felony convictions, some for serious matters.” Appellant’s Br. 4. He was d eported “a number of times,” but “he always came back.” Id. His parents, siblings, wife, and child live in th e United States. On September 2, 2002, Mr. Jimenez-A lcala was a passenger in a vehicle stopped by the Oklahoma Highway Patrol. Mr . Jimenez-Alcala supplied his name, and after a routine check the trooper fou nd he was wanted as an illegal alien, which led to the current prosecution.-3-

At trial, Mr. Jimenez-Alcala admitted his status as an “alien,” his prior deportations, and his prior conviction for an aggravated felony. He testified in his own defense regarding his background and connec tion to the United States. His defense appears to have been that, because of h is ties and allegiance to the United States, he was a “national” and thus not subject to 8 U.S.C. § 1326. At the jury instruction conference, after presentat ion of the evidence, the district court announced its intention to instruct the jury regarding the definition of “alien.” That instruction, which was ultimately given, is as follows:

JURY INSTRUCTION NO. “ALIEN” - DEFINED The term “alien” means any person who is not a citi zen or national of the United States. The term “national of the United States” means a person who, though not a citizen of the United States, owes permanent allegiance to the United States. You are further instructed that one does not become a “national of the United States” simply by residing in the United States for a lengthy period of time. The definitio n “national of the United States” also does not include a person who i llegally enters the United States and subjectively considers himself a person who owes permanent allegiance to this country. Examples of “nationals of the United States” include residents of American Samoa and Swains Island and persons who have submitted an applicatio n for United States citizenship. In response, defense counsel stated: “With regard t o that instruction, I have no contrary authority. It is not something that I hav e researched. I would ask that-4-

that paragraph not be included insofar as it is notthe law of the Tenth Circuit and that we proceed with the instruction as originally proposed.” Jury instructions are reviewed “to determine whethe r, as a whole, the instructions correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standard s.” United States v. Fredette , 315 F.3d 1235, 1240 (10th Cir. 2003) (internal quot ation marks omitted). “While we consider the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law, the district court’s decision to give a particular jury instruction is reviewed for abuse of discretion.” Id. at 1241. Mr. Jimenez-Alcala argues that the challenged instr uction “was confusing to the jury because it effectively shifted the burd en of proof to the defendant by declaring who cannot be a ‘national,’ and misled th e jury by providing examples of ‘nationals’ which are not definitive.” Appellan t’s Br. 11. We do not agree. The jury instructions placed the burden on the gove rnment to prove that Mr. Jimenez-Alcala was an “alien,” which is the statuto rily operative term. There is no prohibition on jury instructions that inform the jury what is not included within a definition, as well as what is included. 8 U.S.C. § 1101(a)(3) defines an “alien” as “any pe rson not a citizen or national of the United States.” Thus, a defendant may not be convicted under 8 U.S.C. § 1326 if he was either a citizen or a “national.” The term “national of the-5-

United States” is defined by 8 U.S.C. § 1101(a)(22) as “(A) a citizen of the United States, or (B) a person who, though not a ci tizen of the United States, owes permanent allegiance to the United States.” T he statutory language is not self-defining, and might not be understood by an av erage juror. The district court did not err in providing additional explanation. Traditionally, the term “national of the United States,” when applied to non-citizens, referred to persons born in territori es of the United States, a category that has almost become obsolete. Justice Ginsburg recently explained: Nationality and citizenship are not entirely synony mous; one can be a national of the United States and yet not a citizen . 8 U.S.C. § 1101(a)(22). The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of Ame rican Samoa and Swains Island. Miller v. Albright , 523 U.S. 420, 467 n.2 (1998) (Ginsburg, J., disse nting). In a recent decision, the Ninth Circuit comprehensively analyzed the text of 8 U.S.C. § 1101(a)(22), the history of the term “national,” an d the decisions of other courts addressing the issue. Perdomo-Padilla v. Ashcroft , 333 F.3d 964 (9th Cir. 2003) (Graber, J.), petition for cert. filed, 72 U.S.L.W. 3248 (Sep. 22, 2003) (No. 03- 445). The Ninth Circuit concluded that “the term ‘ national,’ when used to describe non-citizens, refers only to those born interritories of the United States.” Id. at 968. We see no point in repeating that analysi s, which we find persuasive and hereby adopt.-6-

The jury instruction provided by the district courtwas, with one small exception discussed below, a correct statement of t he law. The instruction noted, accurately, that a noncitizen does not become a “national of the United States” merely by residing in this country for a lengthy pe riod of time, or by entering illegally and subjectively considering himself a pe rson who owes permanent allegiance to this country. The instruction also c orrectly listed as “[e]xamples” of nationals residents of American Samoa and Swains Is land. In his appellate brief, Mr. Jimenez-Alcala complains that these examples “a re not definitive,” Appellant’s Br. 11, but the jury instruction did no t say that they were. However, the jury instruction was incorrect in one respect. In addition to residents of American Samoa and Swains Island, the instruction listed as among the examples of nationals “persons who have submitt ed an application for United States citizenship.” This example derives from United States v. Morin , 80 F.3d 124 (4th Cir. 1996), which sustained the convictionof a defendant for murder of a “national of the United States” where the victim ha d applied for, but not yet received, naturalization. For reasons ably stated by Judge Graber in PerdomoPadilla , we do not think this is a correct definition of “ national.” 333 F.3d at 971-72; accord, Salim v. Ashcroft , No. 02-2244, 2003 WL 22751083 (3d Cir. July 15, 2003). But to the extent that this part of the instruction was in error, it could not have been prejudicial. Mr. Jimenez-Alcala’s d efense seems to have been that-7-

his long residence in and family connections to the United States could bring him within the definition of a “national.” Therefore, he could only have been helped by an instruction that erroneously suggested that anon-citizen could become a national by means of a unilateral profession of all egiance in a citizenship application. As noted above, Mr. Jimenez-Alcala’s argument that his strong ties to the United States and feelings of allegiance to it could confer on him “national” status was without merit, and the only e rror we find in the instructions was actually beneficial to him. Mr. Jimenez-Alcala’s other appellate arguments warr ant little discussion. In light of the essentially uncontested facts of th e case, which established that Mr. Jimenez-Alcala was a citizen of Mexico, had previou sly been deported, had previously been convicted of an aggravated felony, and was apprehended in Oklahoma without the permission of the Attorney Gen eral to be here, the relatively innocuous statements by government witne sses, from which the jury might have inferred prior criminal acts and brushes with immigration authorities, and which were not the subject of contemporaneous o bjection, did not constitute plain error. Moreover, in light of the fact that M r. Jimenez-Alcala pled not guilty and forced the government to present its case at tr ial, we cannot say that the district court erred in declining to grant a downwa rd departure for acceptance of responsibility.-8-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED

.