FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROSARIO VAZQUEZ-HERNANDEZ, 

AKA Jose Alfredo Jimenez-Valdez,

Defendant-Appellant.

No. 15-10009

D.C. No.

4:14-cr-00772-

RCC-CRP-1

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, Chief District Judge, Presiding

Argued and Submitted September 12, 2016

San Francisco, California

Filed March 3, 2017

Before: Ronald M. Gould and Marsha S. Berzon, Circuit 

Judges, and William K. Sessions, III,

* District Judge.

Opinion by Judge Sessions

 * The Honorable William K. Sessions III, United States District 

Judge for the District of Vermont, sitting by designation.
2 UNITED STATES V. VAZQUEZ-HERNANDEZ

SUMMARY**

Criminal Law

The panel vacated a conviction for attempted illegal 

reentry under 8 U.S.C. § 1326 and remanded for entry of a 

judgment of acquittal.

The panel held that the district court committed plain 

error affecting the defendant’s substantial rights by failing to 

instruct the jury that in order to be found guilty of attempted 

illegal reentry the defendant must have had the specific 

intent to reenter the United States free from official restraint.

The panel held that even if the jury applied the correct 

legal standard, no rational trier of fact could have found the 

essential elements of attempted illegal reentry beyond a 

reasonable doubt. The panel wrote that if properly instructed 

on the official restraint doctrine, no rational jury could have 

concluded beyond a reasonable doubt that the defendant was 

free from official restraint in the pre-inspection area, or that 

he intended to be simply by entering that area. The panel 

wrote that there is likewise insufficient evidence in the 

record to support the defendant’s guilt on the theory that he 

intended to go beyond the pre-inspection area so as to be free 

to go at large and at will within the United States.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. VAZQUEZ-HERNANDEZ 3

COUNSEL

Henry L. Jacobs (argued), Law Offices of Henry Jacobs 

PLLC, Tucson, Arizona, for Defendant-Appellant.

Erica Anderson McCallum (argued) and Elizabeth 

Berenguer, Assistant United States Attorneys; Robert L. 

Miskell, Appellate Chief; John S. Leonardo, United States 

Attorney, United States Attorney’s Office, Tucson, Arizona;

for Plaintiff-Appellee.

OPINION

SESSIONS, District Judge:

Defendant-appellant Rosario Vazquez-Hernandez 

appeals his conviction for attempted illegal reentry under 

8 U.S.C. § 1326 on the ground that there was insufficient 

evidence to support his conviction. Vazquez-Hernandez also 

notes that the district court’s instruction at trial failed to 

properly inform the jury of the essential elements of the 

offense.

The lack of an instruction to the jury that VazquezHernandez had to have a conscious desire to reenter the 

United States free from official restraint to be found guilty 

of the crime of attempted illegal reentry was plain error. 

Moreover, we conclude that even if the jury applied the 

correct legal standard, the trial record provides insufficient 

evidence to allow any rational trier of fact to find the 

essential elements of attempted illegal reentry beyond a 

reasonable doubt. Therefore, we vacate VazquezHernandez’s conviction and remand to the district court to 

enter a judgment of acquittal.
4 UNITED STATES V. VAZQUEZ-HERNANDEZ

I. Background

Prior to his conviction, Vazquez-Hernandez, a citizen of 

Mexico, frequently earned money washing car windows at 

the Mariposa port of entry into the United States in Nogales, 

Arizona. The U.S. inspection station at the Mariposa port of 

entry lies on U.S. territory, about 100 yards north of the 

border with Mexico. As a result, the United States invites 

foreign nationals and U.S. citizens traveling in vehicles to 

enter U.S. territory prior to their inspection by immigration 

officials. Pedestrians are invited to enter the pre-inspection 

area through a separate, designated lane, and are generally 

not permitted in the vehicle lanes for safety reasons. U.S. 

Border Patrol agents have on occasion, however, permitted 

individuals they presume to be U.S. citizens to enter the 

northbound vehicle lanes on foot. Although also not 

officially permitted, vendors and window washers 

commonly enter the pre-inspection area from Mexico on 

foot, touting their wares and services to stopped vehicles.

The pre-inspection area is walled off on all sides except 

at the U.S. border with Mexico and at the Mexican and U.S. 

inspection points, and is monitored by hundreds of U.S. 

government cameras. United States “outbound operations” 

officers, armed with automatic rifles, monitor southbound 

lanes north of the Mexican government’s inspection points. 

Law enforcement agents stationed at the border sometimes 

screen individuals entering the pre-inspection area for those 

who could pose a safety threat and prevent them from 

entering the pre-inspection area.

Subject to this intermittent screening and control, foreign 

nationals enter the pre-inspection area on U.S. territory on a 

daily basis, either in vehicles or on foot. Occasionally, U.S. 

Border Patrol agents attempt to arrest and detain individuals 

present on foot in the pre-inspection area who the agents 
UNITED STATES V. VAZQUEZ-HERNANDEZ 5

believe, based on their behavior and appearance, do not 

“have legal status” in the United States, without inquiring 

about their intent to go past the port of entry. When 

approached by Border Patrol agents, vendors and other 

individuals who do not intend to enter the United States 

beyond the pre-inspection area often flee the pre-inspection 

area and return to the Mexican side of the border. Pedestrians 

attempting to enter the United States without inspection 

sometimes run up the southbound lanes, bypassing the U.S. 

inspection points.

Before his arrest and conviction in 2014, VazquezHernandez was previously removed from the United States 

three times, and was once previously convicted of illegal 

reentry. He was first removed in 2005, before he began his 

window-washing work. Since he began working at the 

Mariposa port of entry, he has twice been arrested in the preinspection area and subsequently deported, in 2010 and 

2013. After his 2010 arrest, he was charged with illegal 

reentry and pled guilty to the offense.

Around the time he was arrested in 2014, VazquezHernandez entered the pre-inspection area at the Mariposa 

port of entry to wash windows almost every day, including 

on the weekends and in the afternoons and evenings. On 

April 5, 2014, two Border Patrol agents, Agent Adam Erfert 

and Joshua Thomas, saw Vazquez-Hernandez on 

surveillance cameras. The agents testified at trial that they 

became suspicious of Vazquez-Hernandez’s intentions 

because he appeared to be looking around and monitoring 

his environment, and because of his attentiveness and 

proximity to the southbound vehicle lanes. The two agents 

approached Vazquez-Hernandez and, despite VazquezHernandez’s efforts to evade the agents’ grasp, arrested him. 

Vazquez-Hernandez was eventually charged with attempted 
6 UNITED STATES V. VAZQUEZ-HERNANDEZ

illegal reentry in violation of 8 U.S.C. § 1326 in a 

superseding indictment returned on October 1, 2014. The 

case proceeded to trial.

At trial, the district court judge instructed the jury on the 

elements of the offense of illegal reentry in the following 

manner:

[T]he government must prove each of the 

following elements beyond a reasonable 

doubt: First, the defendant was removed 

and/or deported from the United States; 

second, the defendant had the conscious 

desire to reenter the United States without 

consent; third, the defendant was an alien at 

the time of his attempted reentry into the 

United States; fourth, the defendant had not 

obtained the consent of the Attorney General 

or the Secretary of the Department of 

Homeland Security to reapply for admission 

into the United States; and fifth, the 

defendant did something that was a 

substantial step toward committing the crime. 

During the course of argument for a directed verdict, and 

outside the presence of the jury, the judge stated to counsel 

that the only question at issue was the defendant’s intent.1

 1 Crossing the United States border from Mexico is a substantial step 

towards the commission of attempted illegal reentry. United States v. 

Leos-Maldonado, 302 F.3d 1061, 1063–64 (9th Cir. 2002). Because

Vazquez-Hernandez acknowledged that he had formally crossed the 

border to enter into the pre-inspection area, the district court instructed 

the parties not to focus on the “substantial step” element of the charged

offense.
UNITED STATES V. VAZQUEZ-HERNANDEZ 7

After receiving the instruction on the elements of 

attempted illegal reentry, the jurors expressed confusion 

about the intent requirement. The jurors asked, “Does, as a 

matter of [l]aw, illegal reentry into the United States include 

the element of intent to stay in the United States? Or is there 

no mention of such intent in the statute?” In response, the 

court referred the jurors to the instruction it had already 

given on the elements of the offense. Vazquez-Hernandez 

did not object to the instructions at trial.

On October 8, 2014, the jury convicted VazquezHernandez of attempted illegal reentry, the sole count in the 

superseding indictment. On December 18, 2014, the district 

court sentenced Vazquez-Hernandez to 40 months of 

imprisonment followed by three years of supervised release 

and imposed a $100 special assessment. VazquezHernandez filed this timely appeal.

II. Discussion

A. Improper jury instruction

Although this Court generally reviews a jury instruction 

that misstates the elements of a statutory crime de novo, we 

review an instruction for plain error in the absence of a 

timely objection to it below.2 United States v. Kilbride,

 2 Although Vazquez-Hernandez did not independently challenge the 

jury instruction on appeal, he did maintain that the instruction was 

erroneous, as part of his argument that no jury could have determined 

that he entered the United States free from official restraint, as required 

by law. Whether the validity of the instruction was adequately raised on 

appeal is debatable. In any event, although we typically refrain from 

addressing issues that neither party properly raised on appeal, we may 

do so in cases of a plain error that affects substantial rights. See United 

States v. Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P. 52(b). We 
8 UNITED STATES V. VAZQUEZ-HERNANDEZ

584 F.3d 1240, 1247 (9th Cir. 2009). In order to conclude 

that plain error exists, we must find “(1) an error that is 

(2) plain and (3) affects substantial rights.” Id. (quoting 

United States v. Peterson, 538 F.3d 1064, 1071 (9th Cir. 

2008)). Where these conditions are met, “we may only 

exercise our discretion to correct the error if it seriously 

affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. (quoting Peterson, 538 F.3d at 1072).

i. Plain error

The district court’s failure to include an instruction on 

freedom from official restraint at summation constituted 

plain error. The Fifth and Sixth Amendments require 

criminal convictions to rest upon a jury determination that 

the defendant is guilty of every element of the crime with 

which he is charged beyond a reasonable doubt. United 

States v. Gaudin, 515 U.S. 506, 509–10 (1995). Jury 

instructions misstate the essential elements of an offense 

when they do not adequately link the intent element of a 

crime with the required object of that intent. See United 

States v. Montoya-Gaxiola, 796 F.3d 1118, 1122–24 (9th 

Cir. 2015) (finding plain error because jury instruction did 

not specify that, where defendant was charged with 

possession of an unregistered firearm, the jury must find that 

the defendant knew of the features of his weapon that 

 

exercise our discretion to address these types of errors if the error 

“seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.” Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 

297 U.S. 157, 160 (1936)). Since the standard by which we review this 

jury instruction on the merits aligns precisely with this preliminary 

question under Federal Rule of Criminal Procedure 52(b), we conclude 

that we have the power to review the instructions for the same reasons 

that we provide for correcting the instructions in this case. See infra, 16

n.4.
UNITED STATES V. VAZQUEZ-HERNANDEZ 9

brought it within the definition of a firearm under the 

criminal statute, rather than knowing that he had a weapon 

which happened to have such features, unbeknown to the 

defendant); United States v. Cherer, 513 F.3d 1150, 1155 

(9th Cir. 2008) (finding error in jury instructions regarding 

the elements of a sex crime committed towards a minor 

where the instruction failed to appropriately connect the 

requisite state of mind, knowledge, with the statute’s object, 

a minor victim).

The crime of attempted illegal reentry under 8 U.S.C. 

§ 1326 is a specific intent crime that requires proof beyond 

a reasonable doubt that the defendant had “the specific intent 

‘to reenter without consent.’” United States v. LomberaValdovinos, 429 F.3d 927, 929 (9th Cir. 2005) (quoting 

United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th 

Cir. 2002)). For the purposes of § 1326, “entry” has a distinct 

legal meaning: “[a]n alien has not entered the United States 

under § 1326 unless he does so ‘free from official restraint.’” 

Id. at 928 (quoting United States v. Gracidas-Ulibarry, 

231 F.3d 1188, 1191 n.3 (9th Cir. 2000) (en banc)). 

Accordingly, to convict a defendant of attempted illegal 

reentry, the Government must “prove beyond a reasonable 

doubt that [the defendant] crossed into the United States with 

the specific ‘intent to enter the country free from official 

restraint.’” United States v. Argueta-Rosales, 819 F.3d 1149, 

1156 (9th Cir. 2016) (quoting Lombera-Valdovinos, 

429 F.3d at 928).

The jury instructions here omitted this element of 

attempted illegal reentry. The district court instructed the 

jury only that it must find that Vazquez-Hernandez “had the 

conscious desire to reenter the United States without 
10 UNITED STATES V. VAZQUEZ-HERNANDEZ

consent,” making no mention of the intent to be free from 

official restraint. This was plain error.3

Gracidas-Ulibarry is not to the contrary. There, this 

Court held that “an explanation of the meaning of specific 

intent is necessary to give guidance as to the proper jury 

instruction for” attempted illegal reentry. GracidasUlibarry, 231 F.3d at 1195. Although Gracidas-Ulibarry

did not specifically explain that § 1326 requires proof that 

the defendant attempt to enter “free from official restraint,” 

there was no dispute concerning whether the defendant in 

that case was under official restraint, or whether he intended 

to proceed past the border checkpoint. See id. at 1191. Here, 

in contrast, greater elaboration on the specific intent 

requirement was necessary because the conditions of the preinspection area at the Mariposa port of entry, combined with 

 3 This case does not involve a failure to define a term that was within 

the comprehension of the average juror. United States v. Tirouda, 

394 F.3d 683, 688–89 (9th Cir. 2005), as amended on denial of reh'g and 

reh’g en banc (July 13, 2005) (“Whether a term in a jury instruction 

requires definition normally turns on whether it expresses a concept 

within the jury's ordinary experience. No prejudice results from a district 

court’s failure to define a concept within the comprehension of the 

average juror.”) (internal quotation omitted). The particular definition of 

the term “entry” in the context of § 1326 evades a “general reading.” See 

United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir. 2000) 

(“[A] general reading would suggest that Pacheco did commit the crime 

because he surely left Mexico for the United States, and he just as surely 

was found on our soil after he came over the border fence. But as a matter 

of law it is not quite that easy because physical presence is not enough.”). 

It is improbable that an average juror could correctly understand and 

apply the term “entry” in this context without a specific instruction that 

illegal reentry requires intent to enter free from official restraint. Nor is 

this a case in which the judge need not have instructed the jury to 

determine a particular question regarding an element of the crime 

because the judge was entitled to determine it himself as a matter of law. 

See United States v. Mujahid, 799 F.3d 1228, 1236–37 (9th Cir. 2015).
UNITED STATES V. VAZQUEZ-HERNANDEZ 11

Vazquez-Hernandez’s assertion that he did not intend to 

proceed beyond the inspection points, created ambiguity 

about Vazquez-Hernandez’s intent to reenter free from 

official restraint.

Likewise, our cases finding no error in the omission of a 

jury instruction on freedom from official restraint when the 

defendant was “found in” the United States in violation of 

§ 1326 do not govern here. See e.g., United States v. 

Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir. 2001) 

(declining to require a trial judge to instruct a jury on the 

“free from official restraint” requirement for entry in a case 

alleging that the defendant was “found in” the United States 

in violation of § 1326, where the defendant did not point to 

evidence that would suggest that his entry was not free from 

official restraint). But see United States v. Bello-Bahena, 

411 F.3d 1083, 1088–91 (9th Cir. 2005) (remanding for new 

trial where trial judge failed to offer the defendant’s jury 

instruction regarding “free from official restraint” at trial for 

being “found in” the United States in violation of § 1326, 

where defendant’s theory that he was not free from official 

restraint because he was subject to constant surveillance had 

a basis in the evidence). We have long recognized that 

“§ 1326 sets forth three distinct offenses: ‘enter,’ ‘attempt to 

enter,’ and ‘found in.’” United States v. Pacheco-Medina, 

212 F.3d 1162, 1165 (9th Cir. 2000). Although “an entry, as 

defined legally, is required before a person is ‘found in’ the 

United States,” id. at 1166, “the Government does not need 

to charge or prove voluntary entry in a § 1326 ‘found in’ 

offense.” United States v. Rivera-Sillas, 417 F.3d 1014, 

1018–19 (9th Cir. 2004), amended (9th Cir. 2005). 

Accordingly, because the elements that the government is 

required to prove in “found in” cases are not directly parallel 

to those required to prove attempted illegal reentry, our 

precedents finding no error where jury instructions did not 
12 UNITED STATES V. VAZQUEZ-HERNANDEZ

describe the “free from official restraint” requirement in 

“found in” cases do not bear on the necessary instructions 

for attempted illegal reentry cases.

ii. The error affected Vazquez-Hernandez’s 

substantial rights 

The lack of a jury instruction regarding freedom from 

official restraint affected Vazquez-Hernandez’s substantial 

rights. An error affects substantial rights if there is “a 

reasonable probability that the error affected the outcome of 

the trial.” United States v. Marcus, 560 U.S. 258, 262 (2010). 

In determining the likelihood that an erroneous instruction 

affected the outcome of a trial, “[w]e review the jury 

instructions as a whole, not only the erroneous instructions. 

We may also examine the arguments made by the parties.” 

United States v. Garrido, 713 F.3d 985, 995 (9th Cir. 2013) 

(internal quotation and citation omitted). Moreover, where a 

jury instruction permits a conviction on either of two 

alternative theories, one of which is later found to be 

unconstitutional, the error affects the defendant’s substantial 

rights if there is a reasonable probability that the jury 

convicted the defendant on the invalid theory. Id.

Here, the government advanced two theories of guilt at 

summation. The district court’s instructions permitted the 

jury to convict Vazquez-Hernandez on either of those 

theories. Specifically, the government argued that the jury 

could convict Vazquez-Hernandez if it found that “he had 

the purpose of illegally reentering the United States, whether 

it was to make a little money from his window washing 

business or to scout for traffickers or flee north in the 

southbound lanes.” Thus, the prosecution indicated that 

either entry into the pre-inspection area with the intent to 

wash windows and then return to Mexico, or entry with the 

intent to move into the United States past the points of 
UNITED STATES V. VAZQUEZ-HERNANDEZ 13

inspection, would constitute an “entry” within the meaning 

of the intent element of the crime.

Our case law clearly does not support the first of those 

theories. First, the official restraint doctrine was intended to 

safeguard the presence of uninspected immigrants in 

precisely the type of area in to which Vazquez-Hernandez 

entered and where he remained. The freedom from official 

restraint requirement addresses the practical concern that 

failing to require such a finding would lead to the 

criminalization of individuals who arrive at a port of entry 

but have not yet had an opportunity to apply for inspection. 

See Argueta-Rosales, 819 F.3d at 1160 (“[T]he official 

restraint doctrine is a practical necessity . . . . We doubt that 

Congress intended to make criminals out of persons who, for 

any number of reasons, approach immigration officials at the 

border.”); United States v. Vasilatos, 209 F.2d 195, 197 (3rd 

Cir. 1954) (explaining that because “in a literal and physical 

sense a person coming from abroad enters the United States 

whenever he reaches land, water or air space within the 

territorial limits of this nation,” “freedom from official 

restraint must be added to physical presence before entry is 

accomplished”) (cited with approval in Argueta-Rosales, 

819 F.3d at 1160). The pre-inspection area at the Mariposa 

port of entry thus serves this function of allowing 

uninspected foreign nationals to assemble to accomplish a 

lawful entry.

Second, an alien is not free from official restraint when 

he is in an area that is subject to constant government 

surveillance. Pacheco-Medina, 212 F.3d at 1165; United 

States v. Aguilar, 883 F.2d 662, 681 (9th Cir. 1989), 

superseded by statute on other grounds, P.L. No. 99-603, 

100 Stat. 3359, as stated in United States v. GonzalezTorres, 309 F.3d 594 (9th Cir. 2002) (“Continuous 
14 UNITED STATES V. VAZQUEZ-HERNANDEZ

surveillance by immigration authorities can be sufficient to 

place an alien under official restraint” for the purposes of 

applying the definition of entry to the crime of illegally 

bringing an alien into the United States). Here, the 

government’s witnesses testified that the pre-inspection area 

was subject to surveillance by hundreds of cameras, with 

small blind spots, and was surrounded on all sides either by 

walls or law enforcement agents.

The only time that Vazquez-Hernandez was not under 

direct camera surveillance was when Border Patrol Agents 

Erfert and Thomas were approaching him, with knowledge 

of his location. Such a minor gap in surveillance is not 

sufficient to break an officer’s “continuous observation” 

necessary to establish official restraint. United States v. 

Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002) (finding 

that where Border Patrol agent observed a defendant from 

the moment he crossed the border, knew the trail on which 

the defendant and others were walking, and only lost sight 

of him “for a number of seconds,” the defendant was under 

constant surveillance and therefore not free from official 

restraint). Moreover, Vazquez-Hernandez’s attempt to evade 

arrest by running from the agents is not sufficient to deem 

him free from official restraint, because he was either subject 

to camera surveillance or within the officer’s sight, or both, 

at the time he ran. See Pacheco-Medina, 212 F.3d at 1163–

65 (finding no freedom from official restraint, and thus no 

entry under § 1326, when alien was subject to surveillance 

from the moment he crossed the border, even though he 

immediately ran away from an agent and “gave chase” rather 

than surrender to arrest).

Finally, the touchstone to determining whether a 

defendant is free from official restraint is whether the 

defendant was free to “go at large and at will within the 
UNITED STATES V. VAZQUEZ-HERNANDEZ 15

United States.” Id. at 1164 (quoting Ex parte Chow Chok, 

151 F. 627, 630 (N.D.N.Y.), aff’d, 163 F. 1021 (2d Cir. 

1908)); see Gonzalez-Torres, 309 F.3d at 598. There is no 

doubt in this case that Vazquez-Hernandez was not free to 

travel at will beyond the points of inspection. The area was 

largely walled off from U.S. territory not subject to such 

surveillance and monitored by Border Patrol agents who 

attempted to stop individuals from proceeding into the 

United States without inspection. Therefore, given this 

evidence on the conditions of the pre-inspection area, no 

rational jury could have concluded beyond a reasonable 

doubt that Vazquez-Hernandez was free from official 

restraint in this area, or that he intended to be by entering it. 

Accordingly, the jury could not properly have sustained a 

conviction on this theory if it had been adequately instructed.

As we explain later, see pp. 18–20, the evidence that 

Vazquez-Hernandez intended to flee northward rather than 

stay in the pre-inspection area was exceedingly weak. Also, 

the jury’s question to the judge indicated that its focus was 

on the first prosecution theory, concerning defendant’s 

simple presence in the pre-inspection area. If the jury was 

focusing on the second theory, that the defendant intended 

to jump the fence and run north across the border, it would 

not have asked about intent to stay in the United States. It is 

therefore reasonably likely that the jury found that VazquezHernandez only intended to enter the pre-inspection area, 

and, in reaching its verdict, relied on the alternative theory 

advanced by the prosecution and permitted by the inadequate 

jury instruction that Vazquez-Hernandez could be convicted 

with this more limited intent. In fact, the evidence did not 

establish that by intending to enter the pre-inspection area, 

Vazquez-Hernandez intended to enter free from official 

restraint, as would be required to convict him on that theory. 

Accordingly, there is a reasonable probability the erroneous 
16 UNITED STATES V. VAZQUEZ-HERNANDEZ

instruction, which permitted the jury to rely on a theory it 

should have discarded, impacted the outcome of the trial. 

Thus, the error affected Vazquez-Hernandez’s substantial 

rights.

iii. Miscarriage of justice 

We exercise our discretion to correct the error in this case 

because the jury’s possible reliance on a legally invalid 

theory constitutes a miscarriage of justice which would 

seriously affect “the fairness, integrity or public reputation 

of judicial proceedings.” Garrido, 713 F.3d at 998 (finding 

that upholding a conviction where “the indictment, the jury 

instructions and the closing arguments at trial were 

permeated with the prohibited . . . theory” and where neither 

party argued their cases on a legally valid theory would

constitute a miscarriage of justice) (internal quotations 

omitted). Permitting a conviction for attempted illegal 

reentry based on the intent to enter into only the preinspection area would undermine the fairness of our nation’s 

inspection procedures and jeopardize the integrity of 

convictions sustained by courts presiding over border 

inspection areas. These pre-inspection areas have been 

established to facilitate our country’s inspection procedures. 

Allowing law enforcement discretion to initiate a criminal 

process against some foreign nationals for crossing the 

border into this area without enunciating the intent to evade 

official surveillance could undermine the purpose of the 

illegal reentry statute.

For these reasons, the omission of the freedom from

official restraint requirement from the jury instruction 
UNITED STATES V. VAZQUEZ-HERNANDEZ 17

constitutes plain error affecting Vazquez-Hernandez’s 

substantial rights.4 We reverse.

B. Insufficient evidence to support the jury’s verdict 

Vazquez-Hernandez argues that there is insufficient 

evidence to support his conviction for attempted illegal 

reentry, a claim which, “if successful, would entitle him to a 

judgment of acquittal.” See United States v. Shetler, 

665 F.3d 1150, 1161 (9th Cir. 2011) (citing United States v. 

Williams, 547 F.3d 1187, 1195 (9th Cir. 2008)). Claims of 

insufficient evidence to support a jury verdict are reviewed 

de novo. United States v. Antonakeas, 255 F.3d 714, 723 (9th 

Cir. 2001). Evidence supporting a conviction is sufficient if, 

“viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 

original). Vazquez-Hernandez’s claim that the district court 

erred in denying his motion for judgment of acquittal 

pursuant to Federal Rule of Criminal Procedure 29 is also 

reviewed de novo. Castellanos-Garcia, 270 F.3d at 775.

We conclude that no rational trier of fact properly 

instructed on the elements of the crime could have found that 

Vazquez-Hernandez possessed the required mens rea for 

attempted illegal reentry beyond a reasonable doubt. To be 

guilty, Vazquez-Hernandez must have intended to enter the

United States free from official restraint and without the 

consent of the Attorney General.

 4 For these same reasons, we exercise our discretion to review the 

jury instruction, notwithstanding that Vazquez-Hernandez did not 

directly raise the issue in his opening brief before this court. See Olano,

507 U.S. at 732, 736; see supra, pp. 7–8 n. 2.
18 UNITED STATES V. VAZQUEZ-HERNANDEZ

As discussed above, if properly instructed on the official 

restraint doctrine, no rational jury could have concluded 

beyond a reasonable doubt that Vazquez-Hernandez was 

free from official restraint in the pre-inspection area, or that 

he intended to be simply by entering that area.

Likewise, there is insufficient evidence in the record to 

support Vazquez-Hernandez’s guilt on the theory that he 

intended to go beyond the pre-inspection area so as to be free 

to go at large and at will within the United States. The 

testimony of Agents Erfert and Thomas as to their 

observations and beliefs about Vazquez-Hernandez’s 

intentions is insufficient to prove beyond a reasonable doubt 

that Vazquez-Hernandez intended to proceed outside the 

pre-inspection area. In particular, Agent Erfert stated that 

Vazquez-Hernandez appeared to be “really worried about 

who was around him and what’s going on,” and Agent 

Thomas stated that Vazquez-Hernandez looked over the wall 

dividing the northbound and southbound lanes once and that 

he looked distracted while washing windows.

Vazquez-Hernandez could have looked around 

cautiously to avoid arrest even if he did not intend to dart 

northward past the pre-inspection area on the southbound 

lanes. Vazquez-Hernandez had been arrested and convicted 

for washing windows in the pre-inspection area before, and 

it would be logical for him to want to avoid the possibility 

of another conviction.

Consistent with Vazquez-Hernandez’s experience, 

Agents Thomas and Erfert testified that they sometimes 

attempt to arrest pedestrian vendors and window-washers 

rather than warning them that they are not authorized in the 

area. When approached, pedestrian vendors typically try to 

avoid arrest by running back to the Mexican side of the 

border. In light of these customary law enforcement 
UNITED STATES V. VAZQUEZ-HERNANDEZ 19

practices, Vazquez-Hernandez’s apparent cautiousness was 

not sufficiently probative of an intent to run north past the 

pre-inspection area.

Agent Erfert speculated that Vazquez-Hernandez was 

attempting to see if there were any Border Patrol Agents in 

the southbound lanes, and that individuals who attempt to 

enter the United States past the pre-inspection area often do 

so by running up the southbound lanes.5 However, VazquezHernandez did not attempt to run northward past the 

inspection points after he saw that the southbound lanes were 

clear of law enforcement officers. Rather, he continued to 

wash windows after looking over the wall cautiously. 

Moreover, Agent Erfert testified that he never saw the 

appellant attempt to jump any of the fences surrounding the 

pre-inspection area that would lead into contiguous U.S. 

territory.

Circumstantial evidence also undermines the inference 

that Vazquez-Hernandez intended to proceed past the 

inspection points. On the day he was arrested, VazquezHernandez carried with him only the supplies necessary to 

carry out window-washing activities. He had only a few 

coins in his possession. Although Vazquez-Hernandez

entered the pre-inspection area around 7:30 p.m., when it 

was starting to get dark, he did not enter under the full cover 

of darkness. He also provided a plausible explanation for his 

arrival at the pre-inspection area late in the day: that he came 

to work after picking up his daughter from school. Although 

the agents testified that Vazquez-Hernandez was wearing a 

sweater or jacket, which one believed was unusual given the 

warm weather, the inference that he was dressed for a long 

 5 In contrast, Agent Thomas testified that he did not know whether 

the appellant’s intent was to go beyond the port of entry.
20 UNITED STATES V. VAZQUEZ-HERNANDEZ

journey is weak. The inference is similarly weak that, 

because an agent saw Vazquez-Hernandez set a water bottle 

down on the dividing wall on one occasion, VazquezHernandez was not using any water, and was not really there 

to wash windows. We conclude, therefore, that no rational

juror could find beyond a reasonable doubt that VazquezHernandez intended to travel northward beyond the points of 

inspection.

III. Conclusion

In light of the foregoing analysis, we conclude that the 

district court’s instruction failed to properly state the 

essential elements of attempted illegal reentry and permitted 

the government to advance, and the jury to convict on, an 

invalid theory of guilt. This was plain error. Because we 

further hold that no properly instructed, rational trier of fact 

could find Vazquez-Hernandez guilty of the crime of 

attempted illegal reentry, we reverse the defendant’s 

conviction and remand to the district court to enter a 

judgment of acquittal.

REVERSED and REMANDED.