* Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Fifth Circuit Rule

47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 98-50212

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE TRINIDAD DIAZ-DE LA O,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(EP-97-CR-623-DB-ALL)

February 4, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge: *

Jose Trinidad Diaz-De La O (“Diaz”) appeals his conviction and sentence for attempted illegal

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

I

Customs Inspectors pulled Diaz out of a line of people waiting to approach the turnstiles at

the Paso Del Norte Port o f Ent ry o n t he Mexico-United States border. They seized him after a

narcotics-detecting dog alerted to him. At the time he was seized, Diaz had not applied to enter the

United States, nor had he entered the p rimary inspection area. Inspectors searched Diaz, and

although they found no narcotics, a record check revealed that Diaz had previously been deported

fro m the United States. Diaz was charged with illegal reentry and attempted illegal reent ry in

violation of 8 U.S.C. § 1326. A jury found Diaz guilty of attempted illegal reentry, but acquitted him-2-

of illegal reentry. The district court sentenced Diaz to ninety-two months of imprisonment and three

years of supervised release.

Diaz appeals on two grounds. First, he argues that the district court erred in refusing to give

his proposed jury instruction on attem pt. Second, he contends that the district court misapplied the

Sentencing Guidelines in denying Diaz a downward adjustment for acceptance of responsibility.

II

It is a crime for an alien who has been deported from the United States to “enter[] or attempt

to enter

. . . the United States” without proper approval. 8 U.S.C. § 1326. To be guilty of any

attempt crime, a defendant must have (1) “‘act[ed] with the kind of culpability otherwise required for

t he co mmission of the crime,’” and (2) “‘engaged in conduct which constitutes a substantial step

toward commission of the crime,’ i.e.

, conduct ‘strongl y corroborative of the firmness of the

defendant’s criminal intent.’” United States v. Stone

, 960 F.2d 426, 433 (5th Cir. 1992 ) (quoti ng

United States v. Mandujano , 499 F.2d 370, 376 (5th Cir. 1974)). The district court instructed the

jury that to find Diaz guilty of attempted illegal reentry, the jury must find:

First : that the defendant intended to enter the United States without the permission

of the Attorney General, after being arrested and deported at some earlier time; and

Second : that the d efendant did an act constituting a substantial step towards the

commission of that crime which strongly corroborates the defendant’s criminal intent.

Diaz asked the court to add the following instruction: “ T hird : That the substantial step or steps taken

by the Defendant must be unique rather than so commonplace that they are engaged in by persons

not in violation of the law.” His proposed instruction mimicked our decision in U nited States v.

Oviedo , in which we held:

[ I]n o rder fo r a defendant to be guilty of a criminal attempt, the objective acts

performed, without any reliance on the accompanying mens rea

, mark the defendant’s

conduct as criminal in nature. The acts should be u niqu e rather than so

commonplace that they are engaged in by persons not in violation of the law

.

United States v. Oviedo , 525 F.2d 881, 885 (5th Cir. 1976) (emphasis added).

We review a district court’s refusal to give a requested jury instruction for abuse of discretion.

See United States v. Sellers

, 926 F.2d 410, 414 (5th Cir. 1991). Typically, a trial court’s refusal to-3-

include a requested instruction is reversible “only if the requested instruction is substantially correct,

the actual charge given the jury did not substantially cover the content of the proposed instruction,

and the omission of the proposed instruction would seriously impair the defendant’s abilit y to present

a defense.” U

nited States v. Pettigrew

, 77 F.3d 1500, 1510 (5th Cir. 1996). Diaz argues that the

omission of his requested instruction improperly hampered his defense. He contends that standing

in line at a port of entry is a commonplace activity, and that under Oviedo

, suc h behavior alone

cannot form the basis of an attempt conviction. Without his requested instruction, Diaz submits, the

jury was unable to consider that aspect of his defense.

We find tha t t he district court did not abuse its discretion, because the district court’s jury

charge “substantially cover[ed]” Diaz’s proposed instruction. P ettigrew

, 77 F.3d at 1510.

Specifically, the content of Diaz’s requested instruction was adequately covered by the district court’s

charge that a defendant must take “a substantial step towards commission of that crime which

strongly corroborates his criminal intent.” Diaz is correct that under O viedo

, a defendant’s acts must

be “unique rather than so commonplace that they are engaged in by persons not in violation of the

law.” O viedo

, 525 F.2d at 885. This begs the question, however, of precisely what distinguishes acts

that are “unique” from those that are “commonplace.” Oviedo answered this query by reaffirming

the well-established principle that “the objective conduct of the defendant must strongly corroborate

the firmness of the defendant’s criminal intent.” I d. at 886 (citing Mandujano

, 499 F.2d at 376). I n

an opinion decided shortly after Oviedo

, we acknowledged that “[w]hat the court did in Oviedo was

to require that the objective acts of the defendant, taken as a whole, strongly corroborate the required

culpability.” U

nited States v. Korn

, 557 F.2d 1089, 1091 (5th Cir. 1977). Thus what separates acts

that are unique and t herefore criminal in nature, from acts that are so commonplace that they are

engaged in by persons not in violation of the law, is whether those acts, taken as a whole, strongly

corroborate the required culpability.

Our reasoning in United St ates v. Woolery , 735 F.2d 818 (5th Cir. 1984), bolsters this

conclusion. There, we wrote:-4-

The goal in Oviedo is that objective acts of the defendant without regard to mens rea

“mark the defendant’s conduct as criminal in nature. The acts should be unique rather

than so commonplace that they are engaged in by persons not in violation of the law.”

Only then may an attempt conviction stand.

Woolery

, 735 F.2d at 822 (quoting Oviedo

, 525 F.2d at 885) (citations omitted). Applying this test,

we upheld the attempt conviction in Woolery

, because the defendant’s actions “constitut[ed] precisely

the type of ‘objective acts’ which mark [his] conduct as criminal in nature, and evidence ‘commitment

to the criminal venture and corroborate the mens rea .’” W oolery

, 735 F.2d at 823 (quoting Oviedo

,

525 F.2d at 885). Thus, W oolery equates Oviedo ’s “unique rather than

. . . commonplace” test with

the well-established requirement that a defendant’s acts strongly corroborate a defendant’s criminal

intent.

Fo r t hese reasons, we conclude that the district court’s jury charge, which required the

go vernment to prove “that the defendant did an act constituting a substantial step towards t he

commission of that crime which strongly corroborates the defendant’s criminal intent,” substantially

covered Diaz’s requested instruction. Consequently, the district court did not abuse its discretion in

refusing to include Diaz’s requested instruction on attempt.

III

Diaz also argues that the district court misapplied the Sentencing Guidelines in denying Diaz’s

request for a downward adjustment for acceptance of responsibility. The district court denied Diaz

a downward departure for acceptance o f responsibility because he “put the government through a

trial.” Diaz contends that the district court erred in reading the Guidelines to preclude a finding of

acceptance of responsibility solely because he went to trial. We review the district court’s application

of the Sentencing Guidelines de novo

. S ee United States v. Gross

, 26 F.3d 552, 554 (5th Cir. 1994).

The Sentencing Guidelines authorize the district court to decrease the offense level by two

if “the defendant clearly demonstrates acceptance of responsibility for h is offense.” U.S.S.G. §

3E1.1. “This adjustment is not intended t o apply t o a defendant who puts the government to its

burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment. (n.2). Nonetheless, as explained1 To be guilty of an attem pt, a defendant must have “intended to commit the underlying offense.”

United States v. Thompson , 130 F.3d 676, 688 (5th Cir. 1997), cert. denied , ___ U.S. ___, 118 S.

Ct. 2307, 141 L. Ed. 2d 166 (1998).

2 At closing argument, Diaz’s attorney argued:

Is it possible my client was going to go up and ask a question? You bet it’s possible.

Okay. We’ll never kno w, because they pulled him out of line. Okay. But it’s

certainly possible he could have been going up to ask for a question.

. . . If you think

that it’s a possibility that he could have gone up and asked for permission, or asked

a question and not applied for admission, ladies and gentlemen, that’s a reasonable

doubt. If it causes you to pause, if it causes you to think, “Well, maybe that’s what

-5- in the commentary to the Guidelines:

In rare situations a defendant may clearly demonstrate an acceptance of responsibility

fo r his criminal conduct even though he exercises his constitutional right to a t rial.

This may occur, for example, where a defendant goes to trial to assert and preserve

issues that do not relate to factual guilt ( e.g.

, to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).

Id.

Diaz argues that h is is t he “rare situation[]” in which a defendant may demonstrate an

acceptance of responsibility even though he or she proceeds to trial. I d. He contends that he did not

deny any factual elements of his guilt. According to Diaz, his sole defense at t rial was a legal

argument that he could not be guilty of an attempt to illegally enter the United States where he never

advanced to the primary inspection area, never applied for admission, and never proceeded past the

turnstile at the port of entry. Thus he claims to have asserted a purely legal defense, one which

merely “challenge[d]

. . . the applicability of the statute to his conduct.” U.S.S.G. § 3E1.1, comment.

(n.2).

This characterization, however, defies the actual events at trial. Diaz did contest “essential

factual elements of guilt.” U.S.S.G. § 3E1.1, comment. (n.2). Specifically, Diaz contested whether

he intended to enter the United States. 1 Diaz’s attorney argued to the jury that Diaz may have been

standing in li ne merely t o ask border officials a question, not to procure illegal admission into the

United States. He then asserted that if any juror thought it possible that Diaz intended to do

so mething other than to gain illegal entry into the United States, then he or she would have a

reasonable doubt and could not find that Diaz had criminal intent. 2he was doing,” that’s a reasonable doubt. And that’s eno ugh t o find there wasn’t

intention here.

3 To be sure, it would have been possible for Diaz to present a purely legal defense at trial. He

could have conceded that he intended to enter the United States, and argued solely that his conduct

did not constitute a “‘substantial step toward commission of the crime.’” U nited States v. Stone

, 960

F.2d 426, 433 (5th Ci r. 1992) (quoti ng U nited States v. Mandujano

, 499 F.2d 370, 376 (5th Cir.

1974)). Such a defense would not have denied “essential factual elements of guilt,” and thus might

not have precluded a finding of acceptance of responsibility. U.S.S.G. § 3E1.1, comment. (n.2). As

discussed above, however, Diaz did contest whether he intended to enter the United States. In fact,

when arguing to the jury that Diaz may have lacked criminal intent, Diaz’s attorney noted that this

was a separate argument from Diaz’s claim that he did not take a substantial step towards committing

the offense. He argued:

[L]et’s say that some of you may find that he did have the intent. Some of you—let’s

say that some of you are convinced beyond a reasonable doubt, okay, that he did have

t he int ent to enter. Okay. If you’re convinced of that, okay, you have to ask

yourselves, “Did he act out on it? Did he do—did he take enough of a significant

step?”

-6- By contesting whethe r he intended to enter the United States illegally, Diaz disputed an

“essential factual element[] of guilt.” Id. He did more than merely “challenge . . . the applicability

of the statute to his conduct.” 3 I d. T herefore, this case does not present one of the “rare situations”

where a defendant who puts the gover nment t hro ugh a trial might nonetheless demonstrate an

acceptance of responsibility. I d. T he district court did not err in reading U.S.S.G. § 3E1.1 to

preclude a downward departure because Diaz went to trial.

IV

Accordingly, we affirm Diaz’s conviction and sentence.