F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 23 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
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 Plaintiff-
Appellee.
Before TACHA , Chief Judge, McKAY and McCONNELL , Circuit Judges.
*
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.
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.
-2-
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
-3-
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
-4-
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.
-5-
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 Perdomo-
Padilla, 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
-6-
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.
-7-
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED .
-8-