United States of America v. EFRAIN IBARRA-FLORES, AKA Efrain Ibarra, AKA Efrain Ivarra-Flores

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EFRAIN IBARRA-FLORES, AKA Efrain
Ibarra, AKA Efrain Ivarra-Flores,
Defendant - Appellant.
No. 14-10009
D.C. No. 3:13-CR-0085-HDM-
VPC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Submitted November 20, 2014 **
San Francisco, California
Before: FERNANDEZ and IKUTA, Circuit Judges, and ALBRITTON, Senior
District Judge.***
FILED
DEC 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable William H. Albritton, III, Senior District Judge for the
U.S. District Court for the Middle District of Alabama, sitting by designation.

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Efrain Ibarra-Flores (“Ibarra-Flores”) appeals from his conviction of being
an alien who had been excluded, deported, or removed from the United States and
thereafter enters, attempts to enter, or is found in the United States in violation of 8
U.S.C. §1326(a).
At trial, Ibarra-Flores requested that the trial court instruct the jury that an
alien is a person who is not a natural-born, naturalized, or derivative citizen, and
that derivative citizenship means citizenship derived from that of another, such as a
parent. The district court denied the request, relying on United States v. Espinoza-
Baza, 647 F.3d 1182, 1192 (9th Cir. 2011) (holding that a suggestion of
uncertainty as to the defendant’s mother’s citizenship was not sufficient to put the
derivative citizenship defense at issue so as to warrant an instruction on that
theory).
A criminal defendant has a right to have the jury instructed according to his
theory of the case, provided that the requested instruction is supported by law and
has some foundation in the evidence presented at trial. United States v.
Bello–Bahena, 411 F.3d 1083, 1088–89 (9th Cir. 2005). We review de novo
whether an instruction is supported by law. See United States v. Castagana, 604
F.3d 1160, 1163 n. 2 (9th Cir. 2010). Whether it “has some foundation in the
evidence” is reviewed for an abuse of discretion. See United States v. Daane, 475
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F.3d 1114, 1119 (9th Cir. 2007).
While the test for whether a proposed instruction has an adequate
evidentiary foundation is somewhat generous, the trial record must still contain
"evidence upon which the jury could rationally find for the defendant." Espinoza-
Baza, 647 F.3d at 1191 (citation omitted). Therefore, a defendant must present
more than a mere "scintilla of evidence" of derivative citizenship to warrant a
defense instruction on that theory. Id.
The evidence of citizenship at Ibarra-Flores’s trial consisted of
Ibarra-Flores’s statements to immigration officials that he and his parents were
citizens of Mexico. We conclude that the district court did not abuse its discretion
in finding that the derivative citizenship theory was not sufficiently supported by
evidence at trial for the jury to be instructed as to that theory.
Accordingly, Ibarra-Flores’s conviction is AFFIRMED.
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