FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10398
Plaintiff-Appellee, D.C. No.
v. 1:08-cr-00351-
ROGELIO ESPINOZA-BAZA, AWI-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
January 10, 2011—San Francisco, California
Filed August 4, 2011
Before: J. Clifford Wallace, John T. Noonan, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Wallace
10163
UNITED STATES v. ESPINOZA-BAZA 10167
COUNSEL
Douglas Beevers, Assistant Federal Public Defender, Sacra-
mento, California, for the appellant.
Ian L. Garriques, Assistant United States Attorney, Fresno,
California, for the appellee.
OPINION
WALLACE, Senior Circuit Judge:
After a three-day jury trial in May 2009, Espinoza-Baza
was convicted on two counts of violating 8 U.S.C. § 1326,
which prohibits a deported alien from reentering the United
States without the consent of the United States Attorney Gen-
eral. Espinoza-Baza now appeals from his conviction and
from his subsequent sentence of ninety-six months’ imprison-
ment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I.
Espinoza-Baza was born in Mexico on July 2, 1980. Three
years later, his family relocated to the United States, where
10168 UNITED STATES v. ESPINOZA-BAZA
Espinoza-Baza resided for the next nineteen years. In January
2002, after being convicted on a series of drug-related
offenses, Espinoza-Baza was deported to Mexico.
Not long after his 2002 deportation, Espinoza-Baza ille-
gally reentered the United States and engaged in more crimi-
nal conduct. As a result, following a state conviction for
assault with a deadly weapon, Espinoza-Baza was deported
for the second time in February 2005. Again, however,
Espinoza-Baza immediately returned to the United States,
where he was apprehended after committing two additional
offenses: disturbing the peace in October 2005 and evading a
peace officer in November 2005.
In October 2008, after serving prison time for his 2005
offenses, Espinoza-Baza was charged with being an alien
found in the United States after having been deported for
committing an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2). In a superseding indictment, Espinoza-Baza
was later charged with two separate violations of section
1326: one count of illegally reentering the United States in
2002 and a second count of illegal reentry in early 2005.
Espinoza-Baza’s case proceeded to trial in May 2009,
where one of the primary issues pertained to Espinoza-Baza’s
alienage. At trial, the government introduced evidence that
Espinoza-Baza was a Mexican citizen and that both of his par-
ents were born in Mexico. This evidence consisted of two
sworn confessions in which Espinoza-Baza admitted to police
and immigration officials that neither he nor his parents were
United States citizens. As part of his defense, Espinoza-Baza
introduced evidence indicating that he had made inconsistent
statements about his mother’s citizenship status. Specifically,
Espinoza-Baza introduced notes from a police interview in
which an investigating officer noted that the mother might be
a United States citizen after Espinoza-Baza expressed uncer-
tainty about his mother’s citizenship.
UNITED STATES v. ESPINOZA-BAZA 10169
After the government rested its case, Espinoza-Baza sought
to proffer evidence that his maternal grandfather was born in
Texas. He also sought to introduce testimony from two of his
maternal aunts, who would have testified that Espinoza-
Baza’s Mexican-born mother entered the United States ille-
gally at some unspecified time. According to Espinoza-Baza,
this evidence was admissible to show that he might have
obtained derivative citizenship through his mother and grand-
father.
After considering Espinoza-Baza’s proffer, the district
court excluded this evidence. Relying on 8 U.S.C. § 1401(g),
which sets forth the requirements for derivative citizenship,
the district court ruled that Espinoza-Baza could qualify for
this defense only if his mother had been a United States citi-
zen and had resided in the United States for at least ten years
prior to Espinoza-Baza’s birth (with at least five years of resi-
dency after she reached age fourteen). Because Espinoza-
Baza did not introduce evidence linking his grandfather’s
alleged citizenship with these requirements, the district court
concluded that this proffer, to the extent it was relevant at all,
was of very minimal probative value. The district court there-
fore ruled, pursuant to Federal Rule of Evidence 403, that
consideration of this evidence by the jury unnecessarily risked
confusion of the issues and could have resulted in a verdict
based upon mere speculation.
Following the district court’s evidentiary ruling, Espinoza-
Baza raised one additional issue pertaining to derivative citi-
zenship. This time, he requested that the court instruct the jury
on the defense, arguing that at least some evidence of deriva-
tive citizenship had been introduced at trial. The district court,
however, disagreed and denied Espinoza-Baza’s instruction,
concluding that the trial record did not contain anything more
than a mere scintilla of evidence of derivative citizenship.
At the conclusion of Espinoza-Baza’s trial, the jury found
him guilty on both counts of the superceding indictment, and
10170 UNITED STATES v. ESPINOZA-BAZA
the district court sentenced him to ninety-six months’ impris-
onment. Based on a total offense level of 24 and a criminal
history category of VI, the district court calculated the advi-
sory guidelines range to be 100 to 125 months’ imprisonment.
Yet, rather than impose a sentence within this range, the dis-
trict court granted a downward variance1 and sentenced
Espinoza-Baza to just ninety-six months. According to the
district court, a downward variance was appropriate because
Espinoza-Baza had spent almost his entire life in the United
States and had become culturally assimilated to life in Amer-
ica. Nevertheless, given Espinoza-Baza’s significant criminal
history and because he had reentered the United States ille-
gally on multiple occasions, the district court declined
Espinoza-Baza’s invitation to impose an even lower sentence.
On appeal, Espinoza-Baza challenges the district court’s
evidentiary ruling and its refusal to give a jury instruction per-
taining to derivative citizenship. He also contends that his
ninety-six month sentence is both procedurally and substan-
tively unreasonable.
II.
The crime of illegally reentering the United States after
deportation consists of the following elements: (1) “the defen-
dant is an alien;” (2) he “was deported and removed from the
United States;” and (3) he thereafter “voluntarily reentered
and remained in the United States without the consent of the
Attorney General.” United States v. Godinez-Rabadan, 289
F.3d 630, 633 (9th Cir. 2002); see also 8 U.S.C. § 1326. This
1
A “variance . . . occurs when a judge imposes a sentence above or
below the otherwise properly calculated final sentencing range based on
application of the other statutory factors in 18 U.S.C. § 3553(a).” United
States v. Cruz-Perez, 567 F.3d 1142, 1146 (9th Cir. 2009) (internal quota-
tion marks omitted). This term of art is distinct from a “departure,” which
results in “a change from the final sentencing range computed by examin-
ing the provisions of the Guidelines themselves.” Id. (internal quotation
marks omitted).
UNITED STATES v. ESPINOZA-BAZA 10171
appeal raises two challenges related to the alienage element.
First, Espinoza-Baza contends that the district court improp-
erly excluded evidence related to his derivative citizenship
defense. Second, he argues that the district court erred by
rejecting his request for a jury instruction on that defense.
A.
We turn first to Espinoza-Baza’s contention that the district
court improperly excluded evidence related to derivative citi-
zenship. In illegal reentry cases, the government carries the
burden of establishing alienage by proof beyond a reasonable
doubt. United States v. Smith-Baltiher, 424 F.3d 913, 921 (9th
Cir. 2005). This means that an individual accused of violating
section 1326 is “entitled to put the government to its proof on
the issue of alienage” and must be permitted “to defend him-
self by seeking to prove that he was not an alien.” United
States v. Meza-Soria, 935 F.2d 166, 170 (9th Cir. 1991). A
defendant’s right to present evidence in support of his
defense, however, is not without limits. Greene v. Lambert,
288 F.3d 1081, 1090 (9th Cir. 2002). “While the Constitution
. . . prohibits the exclusion of defense evidence under rules
that serve no legitimate purpose or that are disproportionate
to the ends that they are asserted to promote, well-established
rules of evidence permit trial judges to exclude evidence” that
is irrelevant, lacking in foundation, or when “its probative
value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the
jury.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006);
see also Fed. R. Evid. 401 (relevancy), 403 (unfair prejudice
and jury confusion).
In his appeal, Espinoza-Baza argues that the district court
committed reversible error when it excluded evidence sug-
gesting that his grandfather was a United States citizen. This
challenge requires us to consider two issues. First, we must
determine whether the grandfather’s alleged citizenship is rel-
evant to the question of alienage. If so, we then must decide
10172 UNITED STATES v. ESPINOZA-BAZA
whether the district court abused its discretion when it held
that the potential for jury confusion outweighed the probative
value of this evidence.
1.
Under the Federal Rules, evidence is relevant if is has “any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence.” Fed. R.
Evid. 401. In illegal reentry cases, this means that when a
defendant brings forth probative “evidence that has a ten-
dency to make derivative citizenship more likely, it is relevant
to the issue of alienage.” United States v. Sandoval-Gonzalez,
642 F.3d 717, 724 (9th Cir. 2011).
[1] To determine whether Espinoza-Baza’s proffered evi-
dence has a tendency to make derivative citizenship more
likely, it is first helpful to address the requirements of that
defense. See Scales v. INS, 232 F.3d 1159, 1162 (9th Cir.
2000) (using “[t]he applicable law for transmitting citizenship
. . . that was in effect at the time of [an individual’s] birth”
to determine derivative citizenship). Two requirements were
necessary for Espinoza-Baza, who was born in wedlock in
1980, to have obtained derivative citizenship: (1) one of his
parents must have been a United States citizen at the time of
Espinoza-Baza’s birth; and (2) this parent must have been
“physically present” in the United States for at least ten years
prior to Espinoza-Baza’s birth, with five of those years occur-
ring after the parent attained the age of fourteen. See 8 U.S.C.
§ 1401(g) (1980).
[2] In light of our decision in Sandoval-Gonzalez, it is
clear that Espinoza-Baza’s proffer is legally relevant to the
issue of alienage. In support of his derivative-citizenship
defense, Espinoza-Baza sought to introduce testimony sug-
gesting that his maternal grandfather was born in the United
States. Specifically, two of Espinoza-Baza’s aunts offered to
UNITED STATES v. ESPINOZA-BAZA 10173
testify that their father—Espinoza-Baza’s grandfather—was
born in Texas and resided there for some unspecified time
period before relocating to Mexico. We agree with the gov-
ernment that this evidence only indirectly and tangentially
relates to the requirements for derivative citizenship: the
grandfather’s citizenship provides little in the way of evidence
indicating that one of Espinoza-Baza’s parents was a citizen
or that this parent resided in the United States for the requisite
time period. Nevertheless, under the generous standard articu-
lated in Sandoval-Gonzalez, Espinoza-Baza’s proffer is
legally relevant because a person whose grandfather was born
in the United States is more likely to be a derivative citizen
than someone whose grandparents were born abroad.
The government contends that Espinoza-Baza’s evidence is
not relevant because it fails to address section 1401(g)’s resi-
dency requirement. Based on decisions from the First and
Second Circuits, the government further asserts that Espinoza-
Baza was required to proffer prima facie evidence on both
elements of the defense before his proffer would be deemed
relevant for purposes of derivative citizenship. See United
States v. Guerrier, 428 F.3d 76, 80 (1st Cir. 2005) (affirming
the exclusion of evidence that supported some, but not all, of
the requirements for derivative citizenship); United States v.
Williams, 271 F. App’x 81, 84 (2d Cir. 2008) (concluding that
the defendant “fail[ed] to establish . . . a prima facie deriva-
tive citizenship claim”). While we see some logic in our sister
circuits’ approach—that is, requiring illegal reentry defen-
dants to proffer at least some evidence relating to both prongs
of the derivative citizenship defense before allowing that evi-
dence to go to the jury—our analysis is constrained by
Sandoval-Gonzalez. That case leaves us with no choice but to
conclude that Espinoza-Baza’s evidence of his grandfather’s
citizenship was relevant to the issue of alienage.
2.
[3] Yet, while Espinoza-Baza’s evidence is legally rele-
vant, that is not the end our inquiry. Under Federal Rule of
10174 UNITED STATES v. ESPINOZA-BAZA
Evidence 403, a district court has discretion to exclude even
relevant evidence “if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.”
We afford “[a] district court’s Rule 403 determination . . .
great deference.” United States v. Hinkson, 585 F.3d 1247,
1267 (9th Cir. 2009). As we explained in Kanekoa v. City and
County of Honolulu, “[t]rial judges are better able to sense the
dynamics of a trial than we can ever be, and broad discretion
must be accorded them in balancing probative value against
prejudice.” 879 F.2d 607, 613-14 (9th Cir. 1989) (internal
quotation marks omitted). Thus, “[w]here the evidence is of
very slight (if any) probative value, . . . even a modest likeli-
hood of unfair prejudice or a small risk of misleading the
jury” will justify excluding that evidence. United States v.
Hitt, 981 F.2d 422, 424 (9th Cir. 1992). Further, given the
substantial deference owed to a district court’s Rule 403 rul-
ings, we generally will not disturb such a ruling unless it “lies
beyond the pale of reasonable justification under the circum-
stances.” United States v. Pineda-Doval, 614 F.3d 1019, 1035
(9th Cir. 2010) (internal quotation marks omitted).
[4] Applying these principles, we hold that the district
court did not abuse its discretion by excluding evidence sug-
gesting that Espinoza-Baza’s grandfather was born in the
United States. Here, we agree with the district court’s conclu-
sion that the probative value of Espinoza-Baza’s evidence is,
at best, marginal. According to Espinoza-Baza, his grandfa-
ther’s citizenship status gives rise to an inference that he
might have obtained derivative citizenship. But, for the jury
to plausibly draw that inference, additional facts are neces-
sary. Here, there is no indication that the grandfather spent
any significant time in the United States following his birth
(so as to convey derivative citizenship to Espinoza-Baza’s
mother), or that the mother even entered the United States
UNITED STATES v. ESPINOZA-BAZA 10175
prior to Espinoza-Baza’s birth or resided here for a sufficient
period of time (as necessary to convey derivative citizenship
to her son). Absent these facts, we are left with only specula-
tion, not proof. Because the record is devoid of anything that
links the grandfather’s citizenship status with the require-
ments for derivative citizenship under 8 U.S.C. § 1401(g), the
probative value of Espinoza-Baza’s evidence is extremely
small. See United States v. 87.98 Acres, 530 F.3d 899, 907-08
(9th Cir. 2008) (holding the probative value of excluded evi-
dence to be minimal where there was nothing “linking” that
evidence to the facts at issue); Rogers v. Raymark Indus., Inc.,
922 F.2d 1426, 1432 (9th Cir. 1991) (“Given the tenuous link
between” the proffered evidence and the dispositive issues,
“the district court could reasonably find that plaintiff’s prof-
fered evidence” had little “probative value”).
[5] We also agree with the district court’s conclusion that
Espinoza-Baza’s evidence, if admitted, would have created a
substantial risk of confusion and that it might have caused the
jury to base its verdict on highly speculative evidence rather
than Espinoza-Baza’s guilt or innocence. See Old Chief v.
United States, 519 U.S. 172, 180 (1997) (permitting trial
courts to exclude evidence pursuant to Rule 403 having “an
undue tendency to suggest decision on an improper basis”).
Under our precedent, even “a small risk of misleading the
jury” substantially outweighs the probative value of mini-
mally probative evidence. Hitt, 981 F.2d at 424; cf. United
States v. Gonzalez-Flores, 418 F.3d 1093, 1098-99 (9th Cir.
2005) (evidence presenting even a “modest likelihood of
unfair prejudice” is “high enough to outweigh the . . . proba-
tive value” of marginally relevant evidence). Absent facts
connecting Espinoza-Baza’s evidence with the elements of
derivative citizenship, there is at least a modest risk that the
jury might be misled into reaching a verdict on pure specula-
tion. Thus, because Espinoza-Baza’s evidence provided only
marginal probative value and presented an undue risk of jury
confusion, we cannot say that the district court’s decision falls
10176 UNITED STATES v. ESPINOZA-BAZA
outside “the pale of reasonable justification under the circum-
stances.” Pineda-Doval, 614 F.3d at 1035.
Our conclusion finds additional support here because
Espinoza-Baza’s proffer, on its face, demonstrates that there
is no way that he could have obtained derivative citizenship.
According to Espinoza-Baza’s proffered evidence, his aunts
would have testified that his “mother went to the United
States illegally at some point.” If Espinoza-Baza’s mother
lacked legal authorization to enter and reside in the United
States, then there is no way that she could have been a citizen,
derivative or otherwise. Obviously, if Espinoza-Baza’s
mother was not a citizen, it follows that she—irrespective of
the grandfather’s citizenship status or the duration of the
mother’s residency in the United States—could not possibly
have conveyed derivative citizenship to her son. Under these
particular circumstances, the probative value of the excluded
evidence is virtually zero. See United States v. Velasques-
Vela, 443 F.2d 231, 233 (9th Cir. 1971) (holding that prof-
fered evidence arguably relevant to one element of derivative
citizenship was properly excluded because that evidence dem-
onstrated clearly that the defendant could not possibly satisfy
the other element).
[6] We recognize that the district court conducted its Rule
403 analysis without the benefit of our recent decision in
Sandoval-Gonzalez. That case holds “that a criminal defen-
dant faces no burden whatsoever regarding the issue of deriv-
ative citizenship in a prosecution for an offense of which
alienage is an element.” 642 F.3d at 723. But again, while this
language provides section 1326 defendants with a broad right
to introduce relevant evidence relating to derivative citizen-
ship, “well-established rules of evidence” can still trump that
right when the probative value of the defendant’s evidence “is
outweighed by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the jury.”
Holmes, 547 U.S. at 326.
UNITED STATES v. ESPINOZA-BAZA 10177
[7] Under our precedent, a previous decision does not bind
a subsequent panel with respect to matters that were not con-
sidered or addressed in the prior case. Reynolds Metals Co. v.
Ellis, 202 F.3d 1246, 1249 (9th Cir. 2000). Hence, Sandoval-
Gonzalez, which did not consider or address Holmes or Rule
403, does not control our analysis of whether the potential for
jury confusion in this case substantially outweighed the lim-
ited probative value of Espinoza-Baza’s proffer. See id. In
fact, because “considerations arising under Rule 403 are sus-
ceptible only to case-by-case determinations, requiring exami-
nation of the surrounding facts, circumstances, and issues,”
Hinkson, 585 F.3d at 1267 (internal quotation marks omitted),
Sandoval-Gonzalez cannot reasonably be construed as a blan-
ket prohibition on a district court’s ability to weigh evidence
pursuant to Rule 403. On the specific facts, circumstances,
and issues presented here, we therefore hold that the district
court acted within its discretion when it excluded Espinoza-
Baza’s minimally relevant evidence, which presented the
potential for jury confusion and which could have resulted in
a verdict premised on mere speculation.
B.
[8] We turn now to Espinoza-Baza’s argument that the dis-
trict court erred by declining to issue a jury instruction on
derivative citizenship. Under our precedent, a criminal defen-
dant is generally entitled to an instruction on his theory of the
case. United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th
Cir. 1992). A trial court, however, need not instruct the jury
on theories that lack a factual foundation in the evidence. Id.
Where, as here, “the parties dispute whether the required fac-
tual foundation exists,” we “apply an abuse of discretion stan-
dard of review.” Id.; see also United States v. Burt, 410 F.3d
1100, 1103 (9th Cir. 2005) (reviewing “the district court’s
findings on whether a defendant’s theories are factually sup-
ported for an abuse of discretion”).
[9] The test for whether a proposed instruction has an ade-
quate evidentiary foundation is somewhat “generous.” United
10178 UNITED STATES v. ESPINOZA-BAZA
States v. Thomas, 612 F.3d 1107, 1121 (9th Cir. 2010). In
general, a “defendant is entitled to his proposed instruction
even if his evidence is weak, insufficient, inconsistent, or of
doubtful credibility.” United States v. Johnson, 459 F.3d 990,
993 (9th Cir. 2006) (internal quotation marks omitted). But,
as we explained in Thomas, the trial record must still contain
“evidence upon which the jury could rationally find for the
defendant.” 612 F.3d at 1121. Applying this standard in ille-
gal reentry cases, we have held that a defendant must present
something more than a mere “scintilla of evidence” of deriva-
tive citizenship to warrant a defense instruction on that theory.
United States v. Torres-Flores, 502 F.3d 885, 887 n.2 (9th
Cir. 2007); see also United States v. Wofford, 122 F.3d 787,
789 (9th Cir. 1997) (“A mere scintilla of evidence supporting
a defendant’s theory . . . is not sufficient to warrant a defense
instruction” (internal quotation marks omitted)).
After careful review of the trial record, we hold that the dis-
trict court did not abuse its discretion when it found that
Espinoza-Baza’s derivative citizenship theory lacked the nec-
essary factual foundation in the evidence. See Gomez-Osorio,
957 F.2d at 642. In support of his request for an instruction
on this defense, Espinoza-Baza directs our attention to notes
from a May 2007 interview wherein an Immigration and Cus-
toms Enforcement Officer speculated that Espinoza-Baza’s
mother might be a United States citizen. In these interview
notes, Officer Jesse Cruz listed “USC” for the mother’s
nationality after Espinoza-Baza stated that “he wasn’t certain
about his parents’ citizenship” and that he “didn’t know”
whether his mother was “a U.S. citizen or Mexican citizen or
legal permanent resident.”
[10] Officer Cruz’s interview notes and the hearsay state-
ments upon which they are based present nothing more than
a mere “scintilla of evidence” in support of Espinoza-Baza’s
proposed instruction on derivative citizenship. Torres-Flores,
502 F.3d at 887 n.2. Although Espinoza-Baza’s unsubstan-
tiated and self-serving hearsay statements did find their way
UNITED STATES v. ESPINOZA-BAZA 10179
into the trial record, this evidence contains virtually no proba-
tive value—at least as far as derivative citizenship is
concerned—because it merely suggested Espinoza-Baza’s
uncertainty about his mother’s citizenship. Espinoza-Baza’s
statement that he did not know his mother’s nationality suf-
fers from the same problem: it simply does not provide an
evidentiary foundation upon which the “jury could rationally
find for the defendant” on the basis of derivative citizenship.
Thomas, 612 F.3d at 1121. Without any facts linking
Espinoza-Baza’s evidence with the required elements for
derivative citizenship, an instruction on the defense was not
required.
Additionally, and notwithstanding Espinoza-Baza’s asser-
tions to the contrary, the jury’s inquiry to the district court
regarding derivative citizenship does not alter our analysis.
During its deliberations, the jury asked, “What is derivative
citizenship? Is it the same as dual?” On the current record, we
can only speculate about what the jury was thinking when it
raised this question. Cf. United States v. Kim, 196 F.3d 1079,
1082-83 (9th Cir. 1999) (rejecting speculative arguments
regarding the significance of an ambiguous jury note). Per-
haps the jury was simply curious because Espinoza-Baza’s
attorney referred to derivative citizenship during his opening
statement, but, lacking probative evidence, never discussed
the matter further. Whatever the reason, the jury’s note is not
of any consequence here. Given that the record lacks evidence
of derivative citizenship upon which the jury could have
found in Espinoza-Baza’s favor, no instruction on that theory
was necessary. See Thomas, 612 F.3d at 1121.
[11] We also are unpersuaded by Espinoza-Baza’s sugges-
tion that an instruction was necessary in light of our decisions
in Smith-Baltiher and Sandoval-Gonzalez. In those cases, we
reasoned that where derivative citizenship is at issue, a section
1326 defendant “ ‘must be allowed to present that defense to
the jury.’ ” Sandoval-Gonzalez, 642 F.3d at 722, quoting
Smith-Baltiher, 424 F.3d at 922. Whatever the potential impli-
10180 UNITED STATES v. ESPINOZA-BAZA
cations of this broad language, Torres-Flores and Thomas are
directly on point: there must be evidence that puts the defense
in issue to warrant an instruction on a defendant’s theory of
the case. 502 F.3d at 887 n.2; 612 F.3d at 1121. Because the
trial record contains nothing more than a mere scintilla of evi-
dence of derivative citizenship, the district court did not abuse
its discretion when it found the requisite evidentiary founda-
tion lacking and refused to instruct the jury pursuant to that
theory.
III.
Espinoza-Baza next raises two challenges to his ninety-six
month sentence: (1) the district court committed procedural
error because it miscalculated the applicable guidelines range;
and (2) the district court committed substantive error by
imposing a sentence “greater than necessary” to comply with
18 U.S.C. § 3553(a).
A.
Although Espinoza-Baza illegally reentered the United
States on two separate occasions—once in 2002 and again in
2005—he contends that the district court committed proce-
dural error by imposing a multiple-count enhancement pursu-
ant to U.S.S.G. § 3D1.4. According to Espinoza-Baza, his
separate counts should have been grouped together under
U.S.S.G. § 3D1.2, which would have resulted in a lower
guidelines range. Our appellate review requires us to ensure
that a criminal defendant’s sentence is procedurally reason-
able. Gall v. United States, 552 U.S. 38, 51 (2007). To be rea-
sonable, his sentence must be based on an accurate calculation
of the applicable sentencing guidelines range. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008). When evaluating
whether a district court correctly calculated that range, we
consider the district court’s interpretation of the guidelines de
novo. United States v. Albritton, 622 F.3d 1104, 1106 (9th
Cir. 2010).
UNITED STATES v. ESPINOZA-BAZA 10181
[12] The federal sentencing guidelines require “that ‘[a]ll
counts involving substantially the same harm . . . be grouped
together into a single Group’ for purposes of calculating the
offense level pertaining to a multiple-count conviction.”
United States v. Nanthanseng, 221 F.3d 1082, 1083 (9th Cir.
2000), quoting U.S.S.G. § 3D1.2. Where “multiple counts fall
outside a single Group, . . . U.S.S.G. § 3D1.4 requires the
imposition of a discounted enhancement based on the number
and severity of the counts that fall outside that group.” Id. For
purposes of section 3D1.2, offenses involve “substantially the
same harm” and must be grouped under the following circum-
stances:
(a) When counts involve the same victim and the
same act or transaction.
(b) When counts involve the same victim and two
or more acts or transactions connected by a
common criminal objective or constituting part
of a common scheme or plan.
(c) When one of the counts embodies conduct that
is treated as a specific offense characteristic in,
or other adjustment to, the guideline applicable
to another of the counts.
(d) When the offense level is determined largely
on the basis of the total amount of harm or loss,
the quantity of a substance involved, or some
other measure of aggregate harm, or if the
offense behavior is ongoing or continuous in
nature and the offense guideline is written to
cover such behavior.
U.S.S.G. § 3D1.2. For immigration offenses, the term “vic-
tim” is defined as “the societal interest that is harmed.” Id.
§ 3D1.2 n.2.
10182 UNITED STATES v. ESPINOZA-BAZA
[13] Espinoza-Baza’s illegal reentries, separated by three
years, are ineligible for grouping pursuant to section 3D1.2.
As an initial matter, grouping is clearly unavailable pursuant
to subsections (a), (c), and (d). Subsection (a) does not apply
because Espinoza-Baza’s 2002 and 2005 illegal reentries were
not part of the “same act or transaction.” Similarly, grouping
under subsection (c) is unavailable because neither of
Espinoza-Baza’s counts “embod[y] conduct that is treated as
a specific offense characteristic in” the guideline applicable to
the other count. Subsection (d) is inapplicable because
Espinoza-Baza’s offense level was not determined based on
“the total amount of harm or loss” and because the conduct
underlying Espinoza-Baza’s separate offenses was not “ongo-
ing or continuous in nature.” See id. § 3D1.2.
[14] Turning to section 3D1.2(b), Espinoza-Baza’s sepa-
rate violations of 8 U.S.C. § 1326 may have shared the same
victim (the societal interest harmed), but they were not “con-
nected by a common criminal objective,” and they were not
“part of a common scheme or plan.” In a nearly identical case,
the Seventh Circuit concluded that multiple illegal entry
counts typically do not qualify for grouping under the guide-
lines. United States v. Bahena-Guifarro, 324 F.3d 560, 564
(7th Cir. 2003). In Bahena-Guifarro, the court explained that
the defendant’s illegal entries were not connected to a com-
mon objective or scheme because the defendant’s conduct
simply consisted of “ ‘single episodes of criminal behavior,
each satisfying an individual—albeit identical—goal.’ ” Id. at
565, quoting United States v. Pitts, 176 F.3d 239, 245 (4th
Cir. 1999). Comparing an illegal reentrant to a prisoner that
attempts to escape from prison on multiple occasions, the
Seventh Circuit observed: “Although the defendant who
escapes engages in the same type of conduct each time and
harms the same societal interest each time, each escape is a
separate and distinct offense that may not be grouped. So too
with illegal reentry.” Id. at 564 (internal citation omitted).
UNITED STATES v. ESPINOZA-BAZA 10183
[15] We are persuaded by the Seventh Circuit’s analysis,
and it is consistent with section 3D1.2(b). The commentary to
that section provides:
[C]ounts that are part of a single course of conduct
with a single criminal objective and represent essen-
tially one composite harm to the same victim are to
be grouped together, even if they constitute legally
distinct offenses occurring at different times. This
provision does not authorize the grouping of
offenses that cannot be considered to represent
essentially one composite harm (e.g., robbery of the
same victim on different occasions involves multi-
ple, separate instances of fear and risk of harm, not
one composite harm).
U.S.S.G. § 3D1.2 n.4 (emphasis added). The examples in the
commentary provide further guidance. Grouping, for instance,
is proper when a defendant is convicted on multiple counts for
auto theft and for altering the vehicle identification number of
the stolen car. Id. As with robbery, however, grouping is
unavailable when a defendant is convicted on two counts of
raping the same person on different days. Id. Although the
offender may have the same objective each time he rapes his
victim, his separate acts on different occasions cannot be
deemed “connected” for purposes of section 3D1.2(b) because
each act involves a discrete harm to the victim. See id.
[16] The same rationale applies to Espinoza-Baza’s 2002
and 2005 illegal reentry offenses. According to Espinoza-
Baza, he acted pursuant to a single criminal objective—an
“overpowering desire to continue living” illegally in the
United States with his family. But while we sympathize with
his desire to live in close proximity to his family, Espinoza-
Baza’s conduct simply does not qualify for grouping under
section 3D1.2(b). Although Espinoza-Baza had the same pur-
pose for reentering the United States multiple times, his
offenses did not represent “essentially one composite harm.”
10184 UNITED STATES v. ESPINOZA-BAZA
See U.S.S.G. § 3D1.2 n.4. Instead, like the criminal that robs
the same victim on different occasions with an identical
objective each time, Espinoza-Baza’s multiple reentries over
the course of three years “constitute[ ] single episodes of
criminal behavior, each satisfying an individual—albeit
identical—goal.” Bahena-Guifarro, 324 F.3d at 565 (internal
quotation marks omitted). The district court therefore did not
err by upwardly adjusting Espinoza-Baza’s sentence pursuant
to a multiple count enhancement.
B.
Finally, we turn to Espinoza-Baza’s argument that his sen-
tence is substantively unreasonable. In evaluating substantive
reasonableness, we consider the totality of the circumstances
and presume neither that a non-guidelines sentence is unrea-
sonable nor that a within-guidelines sentence is reasonable.
Carty, 520 F.3d at 993. “When a district judge has considered
the § 3553(a) factors and the totality of the circumstances sup-
ports the sentence, we have held that the sentence is substan-
tively reasonable and that we may not reverse just because we
think a different sentence is appropriate.” United States v.
Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010) (internal
quotation marks and alteration omitted). “Regardless of
whether the sentence imposed is inside or outside the Guide-
lines range,” we are required to “review the sentence under an
abuse-of-discretion standard.” Gall, 552 U.S. at 51.
[17] After correctly calculating the non-binding guideline
range to be 100 to 125 months’ imprisonment, the district
court granted a downward variance and imposed a below-
guidelines sentence of 96 months. Although Espinoza-Baza
contends that this term of imprisonment is still too high, we
conclude from the totality of the circumstances that the dis-
trict court did not abuse its discretion. See Blinkinsop, 606
F.3d at 1116. As the district court observed, Espinoza-Baza’s
criminal history includes multiple drug-related offenses, an
assault with a deadly weapon, a disturbing the peace viola-
UNITED STATES v. ESPINOZA-BAZA 10185
tion, and a conviction for evading a peace officer. Given the
severity and escalating nature of Espinoza-Baza’s criminal
behavior, the district court did not abuse its discretion when
it concluded that a ninety-six month sentence was necessary
to deter criminal conduct and to protect the public from fur-
ther crime. See United States v. Williams, 425 F.3d 478, 481
(7th Cir. 2005) (“[W]hat we must decide is whether the dis-
trict judge imposed the sentence he or she did for reasons that
are logical and consistent with the factors set forth in section
3553(a)”).
[18] We also disagree with Espinoza-Baza’s contention
that his below-guidelines sentence subjects him to an unwar-
ranted sentencing disparity. Although Espinoza-Baza’s sen-
tence is higher than the majority of defendants convicted of
illegal reentry after deportation, this alone is insufficient to
establish that his sentence is unreasonable. See 18 U.S.C.
§ 3553(a). It does not “matter for the purposes of § 3553(a)
that [Espinoza-Baza] can point to [other] criminal defen-
dant[s] . . . who may have received . . . lighter sentence[s]”
under materially different circumstances. See United States v.
Treadwell, 593 F.3d 990, 1012 (9th Cir. 2010). There is noth-
ing in the record suggesting that these other defendants had
comparable criminal histories to Espinoza-Baza, that they
were aggravated felons, or that they had illegally reentered the
United States on multiple occasions. See id. Accordingly,
under the circumstances of this case, we conclude that
Espinoza-Baza’s sentence was both procedurally and substan-
tively reasonable.
AFFIRMED.