### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-30992

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
pr o p o sed instruction regarding the alienage element of the illegal-reentry offense. After reviewing his claim, we AFFIRM his conviction. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 18 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-30992 Document: 00511635860 Page: 1 Date Filed: 10/18/2011No. 10-30992

I. Followin g a j u ry 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 “naturalborn 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 regi s t e r e d 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 g av e 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 m anager for the United States Citizenship and Immigration Services (a component of the Department of Homeland Security), testified that her records search had turned u p no record of an application by Mr. ValdezLopez 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 th e State Department, and she did not have access to them.

2 Case: 10-30992 Document: 00511635860 Page: 2 Date Filed: 10/18/2011No. 10-30992

Later in the trial, the government called ICE special agent Ryan Maher, who testified that he ran six combinations of birthdates and v a ri a n t s of the defendant’s name in the State Department’s consular consolidated dat ab a s e . His search returned no results. The name variants that Maher checked included those on the defendant’s fingerprint c a r d s . Maher did not check two name variants (Frenando Valdez-Lo p ez and Jose Valdez-Lopez) under which the def e n d ant 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, th e 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: 3 Date Filed: 10/18/2011No. 10-30992

in the indictment. To the pattern instruction, Mr. Valdez-Lopez sought to add 1 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 deriv ative citizenship relied on a noncrimina l c ase 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. The court noted that the defendant made no showing 2 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

Thef ull textof

Pat ter n Ju ry Ins tru cti on 2.05f ollo ws . 1
Title 8, Unit ed Sta tes Code , Sec tio n 1326( a), mak es it a cri me for an alien to ente r [t o be fou nd wi thin] the Unit ed Sta tes wi th o u t c ons ent of the Atto rney Ge nera l t o a pp ly f or read mis sio n af

terbe ing d epo rte d. For you to find the def

enda nt guilty of this cri me , you mus t be convin ced that the governm ent has pr oved each of the fol low ing beyond a reas onabl e doub t: First : That the de f e n d a nt wa s an alien at the tim e allege d in the indi ctm ent; Seco nd : That the def enda nt had p r e vious ly been deni ed adm iss ion [exc lude d] [rem oved] [d epo rte d] f romthe Unit ed Sta tes ; Thi rd : That ther eaf

ter the def

enda nt kn ow ingly ente red [w as fou nd in] the Unit ed Sta tes ; and Fourth : That the De fen dant had not rec eived the cons ent of the Atto rney Ge nera l of the Unit ed Sta tes to app ly for read mi ss ion to the Unit ed Sta tes sin ce the tim e o f the def

enda nt’ s pr evious d epo rta tio n. Fift h Cir cuitPat ter n Ju ry Ins tru cti on (Crimi nal) 2. 05 ( 2001)

. See Leal Santos v. Muk as ey , 516 F.3d 1, 2 n.1 (1s t C ir. ), cer t. deni ed , 555 U. S. 839 2 (200 8). 4 Case: 10-30992 Document: 00511635860 Page: 4 Date Filed: 10/18/2011No. 10-30992

that “[a]ll persons born or n at uralized 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 i t ’s confusing to the jury because as you said the Court well noted th at 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 m ay be conferr ed 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 p arent 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 th at 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 s t a t ute, 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 a lien 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 ci t i z en 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. V al d ez-Lopez argues on appeal that the district court abused its dis c r e t i o n in refusing to give his proposed instruction regarding derivative

5 Case: 10-30992 Document: 00511635860 Page: 5 Date Filed: 10/18/2011No. 10-30992

citizenship. He contends that the jury should have b e en 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.’” In considering whether the district court abused its discretion, 3 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.’” A defendant is generally 4 entitled to an instruction on a recognized defense for which evidentiary support is present, but that entitlement is not absolute. This court will reverse the

5 district court’s refusal to give a proposed jury instruction “only if the requested instruction (1) was a s ub stantially correct statement of the law, (2) was not substantially covered in the charge as a whole , a n d (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

Uni te d S ta tes v. Wright , 634 F.3d 770, 774 (5t h Cir. 2011) (quo ting Uni ted States v. 3 Wil li am s , 610 F.3d 271, 285 (5t h Cir. 2 0 10)) , cer t. deni ed , No. 10-1 0783, 2011 WL 4531377 (O ct. 3, 201 1).
Id. ( quot ing Uni ted Sta tes v. Sa ntos , 589 F.3d759 , 764 (5th Cir

. 2009) ). 4
Uni ted States v. Ma ta , 491 F.3d 237 , 2 4 1 ( 5 t h Cir. 2007) (c itin g Uni ted States v. 5 Maseratti , 1 F. 3d 330, 336( 5th Cir. 199 3)) , cer t. deni ed , 552 U. S. 118 9 ( 2008)

. 634 F.3d at 775 (quo ting Coop er Indus. , In c . v . T a r ma c Roof

ing Sys. , Inc. , 276 F.3d 6 704, 714( 5th Cir. 200 2))

. 6 Case: 10-30992 Document: 00511635860 Page: 6 Date Filed: 10/18/2011No. 10-30992

instruction would mislead a lay person to think the term “citizen” refers only to native-born or natural i z e d citizens. He argues that lay persons would not understand a “derivative citi z e n” 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. The Government responds 7 that the defendant’s proposed instruction was inac c urate 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 e rr by giving a charge that tracks this Circuit’s pattern jury instructions and that i s a correct statement of law.” The district court’s 8 instruction, which incorporated the patt ern in s truction in full, gave the elements

o f i ll egal reentry after deportation and also provided definitions of those elements. The instructions were clear and corre c t s t a t e m ents of the law that 9 “adequately and fairly covered the issues presented in the case.” 1 0 Moreover, the defendant was not entitled to an instruction on derivative citizenship because there was no evidentiary basis for tha t d e f e n se. “A defendant is entitled to an instruction on a recognized defense for which there

e xi s t s evidence sufficient for a reasonable jury to find in his favor.” In thi s 1 1

Mr

. Valde z-Lop ez doe s not cont end on app eal, as he did in the dis tri ct cour t, that the 7 Go vernm ent’ s evide nce wa s ins uff icie nt to sho w he wa s an alien. Acco rdingly, this argum ent is wa ived. See Uni ted Sta tes v. M usa , 45 F. 3d 922, 925 ( 5th Cir. 199 5).
Uni ted States v. Whitfi eld , 590 F.3d325, 354 (5t h Cir. 2009) , cer t. deni ed , 131 S. Ct. 8 136 (201 0).
See Uni ted States v. Ma rtinez- Cantu , 138 F. App ’x 64 1 , 6 4 2 ( 5 t h Cir. 2005) (p er 9
curiam) (unp ublis hed) (lis ting the elem ents of an illegalr eent ry a ft er dep ort atio n o ff ens e).
Uni ted Sta tes v. T

urne r , 960 F.2d461 , 464 (5t h Cir

. 1992)

. 1 0
Uni ted States v. Ma ta , 491 F.3d 2 3 7 , 2 4 1 (5t h Cir. 2007) (c itin g Uni ted States v. 1 1 Maseratti , 1 F. 3d 330, 336( 5th Cir. 199 3)) , cer t. deni ed , 552 U. S. 118 9 ( 2008)

. 7 Case: 10-30992 Document: 00511635860 Page: 7 Date Filed: 10/18/2011No. 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 Age n t S p o oner 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

. Th e proposed instruction w a s w h olly “without foundation in the evidence,” and thus the district court did not abuse its discretion in refusing it. 1 2

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

Uni ted Sta tes v. Ro bins on , 700 F.2d205 , 211 (5t h Cir. 198 3), cer t. deni ed , 465 U. S. 1 2 1008 (198 4). 8 Case: 10-30992 Document: 00511635860 Page: 8 Date Filed: 10/18/2011