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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This 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; Rozia McKinney-Foster,

Assistant United States Attorney, Oklahoma City, Oklahoma, for PlaintiffAppellee.

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

Appellant Felipe Jimenez-Alcala was convicted on one count of being an

alien found in the United States, without the permission of the Attorney General,

after a previous deportation subsequent to a conviction 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 release and a $100 special

assessment. He challenges this conviction and sentence on three grounds: (1) an

erroneous jury instruction on the meaning of the term “national,” (2) improper

comments by prosecution witnesses, and (3) entitlement to a downward

adjustment for acceptance of responsibility. We affirm the district court.

Mr. Jimenez-Alcala was born in Mexico and brought to the United States

by his parents when he was ten years old. By his own account, while living in

California he “sustained a number of misdemeanor and felony convictions, some

for serious matters.” Appellant’s Br. 4. He was deported “a number of times,”

but “he always came back.” Id. His parents, siblings, wife, and child live in the

United States. On September 2, 2002, Mr. Jimenez-Alcala 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 found he was wanted as an illegal

alien, which led to the current prosecution.
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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 connection to the United States. 

His defense appears to have been that, because of his 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 presentation 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 citizen 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 definition “national of the

United States” also does not include a person who illegally 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 application for United

States citizenship.

In response, defense counsel stated: “With regard to that instruction, I have no

contrary authority. It is not something that I have researched. I would ask that
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that paragraph not be included insofar as it is not the law of the Tenth Circuit and

that we proceed with the instruction as originally proposed.” 

Jury instructions are reviewed “to determine whether, as a whole, the

instructions correctly state the governing law and provide the jury with an ample

understanding of the issues and applicable standards.” United States v. Fredette,

315 F.3d 1235, 1240 (10th Cir. 2003) (internal quotation 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 instruction “was confusing

to the jury because it effectively shifted the burden of proof to the defendant by

declaring who cannot be a ‘national,’ and misled the jury by providing examples

of ‘nationals’ which are not definitive.” Appellant’s Br. 11. We do not agree. 

The jury instructions placed the burden on the government to prove that Mr.

Jimenez-Alcala was an “alien,” which is the statutorily 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 person 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
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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 citizen of the United States,

owes permanent allegiance to the United States.” The statutory language is not

self-defining, and might not be understood by an average 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 territories of the United States, a

category that has almost become obsolete. Justice Ginsburg recently explained:

Nationality and citizenship are not entirely synonymous; 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 American Samoa and

Swains Island.

Miller v. Albright, 523 U.S. 420, 467 n.2 (1998) (Ginsburg, J., dissenting). 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,” and 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 in territories of the United States.” 

Id. at 968. We see no point in repeating that analysis, which we find persuasive

and hereby adopt. 
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The jury instruction provided by the district court was, with one small

exception discussed below, a correct statement of the 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 period of time, or by entering

illegally and subjectively considering himself a person who owes permanent

allegiance to this country. The instruction also correctly listed as “[e]xamples” of

nationals residents of American Samoa and Swains Island. In his appellate brief,

Mr. Jimenez-Alcala complains that these examples “are not definitive,”

Appellant’s Br. 11, but the jury instruction did not 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 submitted an application for United

States citizenship.” This example derives from United States v. Morin, 80 F.3d

124 (4th Cir. 1996), which sustained the conviction of a defendant for murder of a

“national of the United States” where the victim had 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 defense seems to have been that
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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 a non-citizen could become a

national by means of a unilateral profession of allegiance 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 error we find in the instructions

was actually beneficial to him.

Mr. Jimenez-Alcala’s other appellate arguments warrant little discussion. 

In light of the essentially uncontested facts of the case, which established that Mr.

Jimenez-Alcala was a citizen of Mexico, had previously been deported, had

previously been convicted of an aggravated felony, and was apprehended in

Oklahoma without the permission of the Attorney General to be here, the

relatively innocuous statements by government witnesses, from which the jury

might have inferred prior criminal acts and brushes with immigration authorities,

and which were not the subject of contemporaneous objection, did not constitute

plain error. Moreover, in light of the fact that Mr. Jimenez-Alcala pled not guilty

and forced the government to present its case at trial, we cannot say that the

district court erred in declining to grant a downward departure for acceptance of

responsibility.
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The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED .