FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 08-30431
Plaintiff-Appellee, D.C. No.
v. 9:08-CR-00023-
JOSE INES AMBRIZ-AMBRIZ, DWM-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
October 13, 2009—Seattle, Washington
Filed November 10, 2009
Before: Richard D. Cudahy,* Senior Circuit Judge,
Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges.
Opinion by Judge Callahan
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
15085
UNITED STATES v. AMBRIZ-AMBRIZ 15087
COUNSEL
Anthony R. Gallagher, Federal Defender, John Rhodes, Assis-
tant Federal Defender (argued), Johnna Rizza, and Stephanie
Deboer, Legal Interns, Federal Defenders of Montana, Mis-
soula, Montana, for the defendant-appellant.
15088 UNITED STATES v. AMBRIZ-AMBRIZ
William W. Mercer, United States Attorney, and Timothy J.
Racicot, Assistant United States Attorney (argued), Missoula,
Montana, for the plaintiff-appellee.
OPINION
CALLAHAN, Circuit Judge:
Jose Ines Ambriz-Ambriz (Ambriz) challenges the jury
instructions and his conviction of being a previously removed
alien found in the United States in violation of 8 U.S.C.
§ 1326. He asserts that because he was detained at a port of
entry he was entitled to a jury instruction addressing the offi-
cial restraint doctrine. We conclude that because Ambriz had
not legally left the United States on the date of his detention,
and was not entering the United States from a foreign country,
the official restraint doctrine is inapplicable, and we affirm his
conviction and sentence.
I
Ambriz, a Mexican citizen, was convicted of an aggravated
felony in 1980 and deported from the United States in 1985.
Sometime thereafter, he reentered the United States without
inspection or permission.
It appears that on February 28, 2008, Ambriz sought to
travel by car from the United States to Canada, possibly for
some medical procedure. In any event, the vehicle in which
he was traveling with two other individuals was denied entry
into Canada. As a result, the vehicle was forced to proceed
back into the United States where it stopped for inspection at
the Roosville Port of Entry.
A U.S. Customs and Border Patrol Agent requested that
Ambriz produce some identification. Ambriz claimed to be a
UNITED STATES v. AMBRIZ-AMBRIZ 15089
United States citizen and produced a California driver’s
license. The officer directed the driver of the vehicle to pull
into a secondary inspection area for further investigation.
When fingerprints and a record check revealed that Ambriz
was a Mexican citizen and had been previously deported, he
was arrested.
One of the officers responsible for transporting Ambriz
from the port of entry to the Sheriff’s Office in Missoula testi-
fied at trial that Ambriz confessed to his illegal presence in
the United States. The officer testified that Ambriz “said
something to the effect of ‘I’m tired of being illegal in your
country and I’m tired of hiding.’ ” Ambriz did not object to
the admission of this statement at trial.
II
Ambriz was indicted for illegal reentry in violation of 8
U.S.C. § 1326(a). Section 1326(a) states, in relevant part:
any alien who - - (1) has been denied admission,
excluded, deported, or removed or has departed the
United States while an order of exclusion, deporta-
tion, or removal is outstanding, and thereafter (2)
enters, attempts to enter, or is at any time found
in, the United States . . . shall be fined under Title
18, or imprisoned not more than 2 years, or both.
(Emphasis added). Count I of the indictment, however, stated
that Ambriz “was found to have reentered the United States
without receiving permission from the Secretary of the
Department of Homeland Security . . . to apply for re-entry,
in violation of 8 U.S.C. § 1326(a) and (b).” (emphasis added
and citation omitted).
At his jury trial, Ambriz objected to including the phrase
“found to have reentered” in the jury instruction. Although the
district court rejected Ambriz’s proposed instruction, it agreed
15090 UNITED STATES v. AMBRIZ-AMBRIZ
that the statute did not include the language “found to have
reentered,” and struck that language from the government’s
proposed elements instruction.
Ambriz then sought an instruction on the term “found in.”
Relying on our decisions in United States v. Zavala-Mendez,
411 F.3d 1116, 1121 (9th Cir. 2005) and United States v.
Cruz-Escoto, 476 F.3d 1081, 1085 (9th Cir. 2007), he prof-
fered the following instruction: “[t]he alien who crosses the
border at a designated location and proceeds directly in the
manner designated by the Government to the border station
where he then presents himself to the authorities has not yet
been found in the United States for purposes of 8 U.S.C.
§ 1326(a).”
The district court rejected the proposed instruction, noting
that the facts of this case differed from the cited cases in
which the individuals entered the United States from a foreign
country and never gained access into the United States.1 The
judge gave the following instruction on Count I:
In order for the Defendant to be found guilty of the
charge, the Government must prove each of the fol-
lowing elements beyond a reasonable doubt: First,
that the Defendant is an alien; that is, not a United
States citizen. Second, the Defendant was previously
removed from the United States. Third, the Defen-
dant was found in the United States without the writ-
ten consent of the Attorney General of the United
States or its successor, the Secretary of the Depart-
ment of Homeland Security to apply for permission
to reenter the United States.
1
In Cruz-Escoto, the defendant was first observed by a Border Patrol
Agent running northbound in a channel that forms the border between the
United States and Mexico. 476 F.3d at 1084. In Zavala-Mendez, the defen-
dant was a passenger in a car that crossed into Alaska from the Yukon
Territories, Canada. 411 F.3d at 1117.
UNITED STATES v. AMBRIZ-AMBRIZ 15091
Ambriz also sought a specific time and location instruction.
He proposed an instruction stating that “[o]n or about Febru-
ary 28th, 2008, at Roosville, Flathead County in the State and
District of Montana, the Defendant was found in the United
States.” The district court declined to use this language noting
that there was similar language in the indictment and in
another instruction, and commenting that counsel was free to
address time and location in his closing argument.
Ambriz moved several times during trial for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29,
arguing that the government had presented insufficient evi-
dence for a reasonable jury to determine that he was “found
in” the United States beyond a reasonable doubt. The judge
denied the motions and the jury found Ambriz guilty on both
counts.2 The district court sentenced Ambriz to twenty-eight
months in prison, followed by three years of supervised
release. Ambriz filed a timely notice of appeal.
III
Mr. Ambriz’s primary contention on appeal is that he was
not “found in” the United States because he was apprehended
at a port of entry and thus was under “official restraint” and
had not officially entered the United States. This argument
misconstrues the official restraint doctrine, which, properly
understood, pertains to an individual entering the United
States from a foreign country, and thus is inapplicable to Mr.
Ambriz’s situation.
[1] The official restraint doctrine has been applied to two
situations. First, it applies where individuals “fly to the United
States from some other country, get out of the airplane at the
airport and proceed directly to the customs inspection counter
2
In a superseding indictment, the government added a charge of false
impersonation of a United States citizen under 18 U.S.C. § 911. Mr.
Ambriz does not challenge his conviction on this count on appeal.
15092 UNITED STATES v. AMBRIZ-AMBRIZ
where they present themselves.” Zavala-Mendez, 411 F.3d at
1118. Although we have not considered such a case, “[o]ur
sister circuits agree that in such a case, even if the person is
a previously-deported alien without permission to reenter, he
cannot be convicted of being ‘found in’ the United States (as
opposed to attempting to enter).” Id. (citing United States v.
Angeles-Mascote, 206 F.3d 529, 530-32 (5th Cir. 2000) and
United States v. Canals-Jimenez, 943 F.2d 1284, 1286-89
(11th Cir. 1991)).
[2] We have, however, addressed the second situation:
where an alien attempts to sneak across the border but is
observed and ultimately arrested by the authorities. United
States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005).
(“It is well established in this circuit that official restraint
includes constant governmental observation or surveillance
from the moment of entry, and that those who are under such
surveillance for the entire time they are present cannot be
found to have entered the United States for purposes of
§ 1326.”).
[3] This case presents neither of these situations because
the factual predicate for those situations is not present:
Ambriz was not attempting to enter the United States.3 He
was not flying into the country or attempting to cross the bor-
der. Rather, as the evidence at trial indicated, he had been in
the United States illegally for some time when he sought to
leave the United States for Canada and he only arrived at a
port of entry because Canada denied him admission. Although
Ambriz may have technically traveled onto Canadian land
3
Because Ambriz presumably did not have any intent to enter the
United States, as he never legally left the country on February 28, 2008,
it is doubtful that Ambriz could be successfully prosecuted under 8 U.S.C.
§ 1326(a)(2) for “entering” or “attempting to enter” the United States.
Thus, if the court were to adopt Ambriz’s argument that he cannot be pros-
ecuted for being “found in” the United States, this could lead to the unten-
able result that the government could not prosecute Ambriz under any of
the provisions of subsection (a)(2).
UNITED STATES v. AMBRIZ-AMBRIZ 15093
from the United States, he was never legally in Canada, and
thus, when he appeared at the port of entry, he was not enter-
ing the United States from a foreign country.
[4] Indeed, the rationale underlying the official restraint
doctrine compels our focus on Ambriz’s “legal” status. An
alien who gets off an airplane at an airport or who sneaks
across the border is technically on United States land. The
official restraint doctrine, however, distinguishes between a
person’s physical presence and legal presence in the United
States. See Angeles-Mascote, 206 F.3d at 531 (noting that
“ ‘actual entry’ has been found by most courts to require both
physical presence in the country as well as freedom from offi-
cial restraint”). This focus supports our determination that
despite Ambriz’s physical trespass into Canada from the
United States, he was never legally in Canada on February 28,
2008, and thus was not entering the United States from a for-
eign country.
[5] Accordingly, we reject Ambriz’s contention that the
district court erred in denying his motion for judgment of
acquittal, which we review de novo. Bello-Bahena, 411 F.3d
at 1087. In doing so, “[w]e must view the evidence in the light
most favorable to the government and determine whether any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. (citing United
States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir. 2002)).
Here, there was more than enough evidence from which a
juror could reasonably conclude that Ambriz was not entering
the United States from Canada and thus was “found in” the
United States for purposes of § 1326.
[6] We also reject Ambriz’s argument that the district court
should have given his proposed jury instruction defining the
phrase “found in.” Although a defendant “is entitled to have
the judge instruct the jury on his theory of defense, provided
that it is supported by law and has some foundation in the evi-
dence . . . [w]here the parties dispute whether the evidence
15094 UNITED STATES v. AMBRIZ-AMBRIZ
supports a proposed instruction, we review a district court’s
rejection of the instruction for abuse of discretion.” Bello-
Bahena, 411 F.3d at 1088-89 (internal quotation marks and
citations omitted). Here, even assuming that Ambriz’s pro-
posed instruction was an accurate statement of the law, it was
properly rejected as inapplicable to this case. See Cruz-
Escoto, 476 F.3d at 1087 (noting that even if a “proposed
instruction is an accurate statement of the law” the district
court may properly refuse to give it if it is “inapplicable to
th[e] case”). Because the uncontroverted evidence was that
Ambriz never legally left the United States on February 28,
2008, the official restraint doctrine was not applicable even
though he was arrested at a border station.
[7] Furthermore, we reject Ambriz’s arguments that the
jury instructions prevented the jury from performing its con-
stitutionally mandated fact-finding function. He asserts that
the instructions did not adequately define “found in” and did
not include a time and place instruction. The instructions
properly set forth that the government had to prove that
Ambriz was an alien, not a United States citizen, had been
previously removed from the United States, and was “found
in” the United States without the permission of the Attorney
General. See United States v. Hernandez, 189 F.3d 785, 789
(9th Cir. 1999). Ambriz only contested whether he was
“found in” the United States. Other than his assertion of the
official restraint doctrine, he offers no argument that the jury
could not infer the meaning of “found in” from its common
use. We conclude that Ambriz has failed to show that the jury
was confused or misled by being allowed to give the term an
ordinary, common sense meaning.4
4
We have previously held that “[a] district court does not commit plain
error by failing to define a word when it ‘is a common word which an
average juror can understand and which the average juror could have
applied to the facts of [the] case without difficulty.’ ” United States v.
McCaleb, 552 F.3d 1053, 1059 (9th Cir. 2009) (quoting United States v.
Chambers, 918 F.2d 1455, 1460 (9th Cir.1990) (holding that failure to
UNITED STATES v. AMBRIZ-AMBRIZ 15095
Ambriz’s allegation that the district court committed
reversible error in failing to give a time and place instruction
is also unavailing. In the case cited by Ambriz, United States
v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997), the defen-
dant was charged with sexual abuse in 1992, but the evidence
at trial addressed his “sexual inclination toward children in
1994.” Id. at 990. This, we concluded, was too great a dispar-
ity between the date in the indictment and the evidence to
allow the defendant to adequately prepare his defense. See id.
at 991-92. In Ambriz’s case, all the evidence related to events
that took place on one date, February 28, 2008, and at one
location, the Roosville Port of Entry. Moreover, the instruc-
tions given by the court required that the government show
where and when Ambriz was “found in” the United States.
Neither Ambriz nor the jury were in any way confused as to
the time and location of the charged offense.5
IV
[8] Because Ambriz’s travel on February 28, 2008 began in
the United States and because he never officially entered
another country, the official restraint doctrine is not applica-
define “knowingly” was not plain error)); see also United States v. Garza-
Juarez, 992 F.2d 896, 910 (9th Cir. 1993) (holding that failure to define
“possession” was not plain error). Other than attempting to graft the offi-
cial restraint doctrine onto the definition of the phrase “found in,” Ambriz
offers no reason for doubting that “found in” has a common definition that
the jurors understood and were able to apply to the facts in his case.
5
Ambriz also alleges that under Apprendi v. New Jersey, 530 U.S. 466
(2000), the government was required to present his prior conviction to a
jury and prove it beyond a reasonable doubt before it could be used to
enhance the statutory maximum of his sentence. However, as Ambriz rec-
ognizes, we rejected that legal argument in Cruz-Escoto, 476 F.3d at 1090,
and this panel is bound by that decision. See United States v. Gay, 967
F.2d 322, 327 (9th Cir. 1992). Similarly, Ambriz recognizes that his alle-
gations of “the disparate impact of fast-track programs” were rejected in
United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009), and
that determination is also binding on us.
15096 UNITED STATES v. AMBRIZ-AMBRIZ
ble to his situation. He was properly convicted under 8 U.S.C.
§ 1326(a) of being a previously removed alien who was found
in the United States without permission. Ambriz’s conviction
and sentence are AFFIRMED.