United States v. Pascual Francisco-Pascual , 468 F. App'x 694 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50037
Plaintiff - Appellee, D.C. No. 3:09-cr-04151-W-1
v.
MEMORANDUM *
PASCUAL FRANCISCO-PASCUAL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Submitted February 8, 2012 **
Pasadena, California
Before: D.W. NELSON, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Pascual Francisco-Pascual (Francisco) appeals his jury conviction for illegal
reentry into the United States in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Generally, “a defendant is entitled to his proposed instruction even if his
evidence is weak, insufficient, inconsistent, or of doubtful credibility.” United
States v. Espinoza-Baza, 647 F.3d 1182, 1191 (9th Cir. 2011) (internal quotation
marks omitted). But while this standard is “somewhat generous,” the “trial record
must still contain evidence upon which the jury could rationally find for the
defendant.” Id. (internal quotation marks omitted). Thus, a defendant must present
something more than a mere “scintilla of evidence” of national status “to warrant a
defense instruction on that theory.” See id.; United States v. Sotelo, 109 F.3d 1446,
1448 (9th Cir. 1997).
“All citizens of the United States are also nationals. However, some
nationals are not citizens.” Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967 (9th
Cir. 2003). We have held that “a person can become a ‘national of the United
States’ . . . only through birth or naturalization.” Id. at 972. Today, “the only
remaining noncitizen nationals are residents of American Samoa and Swains
Island.” Id. at 967 (quoting Miller v. Albright, 523 U.S. 420, 467 n.2 (1998)
(Ginsburg, J., dissenting)).
Here, the district court did not abuse its discretion by following the Ninth
Circuit Model Jury Instructions and rejecting Francisco’s requested jury
instruction, because Francisco did not present even a mere “scintilla of evidence”
2
of his status as a national of the United States. Francisco was born in Mexico.
Thus, Francisco could not have become a national of the United States through
birth, because he was not born as a citizen national in the United States or as a
noncitizen national in American Samoa or Swains Island. Also, Francisco did not
offer any evidence that he was a national of the United States through
naturalization. Francisco’s requested instruction, as the district court determined,
therefore lacked a factual foundation in the evidence. Put otherwise, “no jury
could have found [Francisco] to be a national.” See Sotelo, 109 F.3d at 1448.
AFFIRMED.
3