United States of America v. Martin Hernandez-Sustaita

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 Barbara Jacobs Rothstein, Senior District Judge for the***
District of Western Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN HERNANDEZ-SUSTAITA,
Defendant - Appellant.
No. 11-10046
D.C. No. 4:10-cr-01157-FRZ-
GEE-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Submitted March 15, 2012**
San Francisco, California
Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.***
FILED
MAR 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Martin Hernandez-Sustaita appeals his jury conviction and sentence for
illegal reentry. Because the parties are familiar with the factual and procedural
history of this case, we do not repeat it here. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
The district court declined to give Hernandez-Sustaita’s requested jury
instruction defining “enter” as “[t]hose who seek to enter in the sense of the law,
and those the policy of the law seeks to prevent from entering, are those who come
to stay permanently, or for a period of time, or to go at large and at will within the
United States.” The government presented evidence that Hernandez-Sustaita
approached officer Marvin Alvarenga when Alvarenga was working “outbound”
pedestrian traffic—encountering people going south from the United States into
Mexico—at the Nogales, Arizona port of entry. Alvarenga testified that upon
request for identification, Hernandez-Sustaita presented a Mexican identification
card and volunteered that he was in the United States illegally. Hernandez-Sustaita
was not under any restraint before he approached Alvarenga, and was therefore
free to go “at will” within the United States. There was no evidence that
Hernandez-Sustaita was unable to move at will within the United States. The
requested jury instruction was therefore unwarranted, and properly denied by the
district court. See United States v. Streit, 962 F.2d 894, 898 (9th Cir. 1992) (for a

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jury instruction to be proper, there must be “evidence upon which the jury could
rationally sustain the defense.” (quotation marks omitted)).
Hernandez-Sustaita also argues that because he was arrested at the border, a
jury instruction regarding official restraint should be given. He claims that because
he was observed only at the port of entry, he could have been under official
restraint for the entire time he was present in the United States. Hernandez-
Sustaita’s own admissions undercut his argument. Since there was no evidence
that he had entered the United States immediately prior to apprehension, this
instruction was also properly denied by the district court. See id.
Hernandez-Sustaita next challenges the sufficiency of the evidence against
him. Although he concedes that the government proved that he “entered” the
United States, he claims that the government did not provide evidence that he
“remained” in the United States. He argues that because he was arrested while
attempting to leave the United States without luggage, and because the government
could not show exactly when he entered after his April 2009 deportation, he could
have entered and immediately decided to return to Mexico, thereby negating the
“remained” requirement. There is evidence, however, that Hernandez-Sustaita did
not cross the border immediately preceding his arrest, including the large amounts
of cash found on his person and his admission that he had been working in the

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fields in California for a year. Sufficient evidence supports his conviction. See
United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995) (a
conviction cannot be reversed “unless there is a clear showing as to insufficiency”
and the court of appeals “must affirm if any rational trier of fact could have found
the evidence sufficient.”).
Finally, Hernandez-Sustaita’s substantive reasonableness argument as to his
sentence boils down to this: Congress did not intend to punish, as illegal re-
entrants, those leaving the United States. He argues that a shorter sentence will
create incentives for others to leave as no deterrence function is served by
incarcerating undocumented immigrants attempting to leave the United States.
The district court sentenced Hernandez-Sustaita to 38 months in prison, far below
the Guideline range of 92 to 15 months. This sentence was not substantively
unreasonable, particularly in light of his prior conviction for possession of
marijuana with intent to distribute, five immigration offenses, and three felony
re-entry convictions. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc); see also United States v. Simmons, 485 F.3d 951, 955 (7th Cir. 2007)
(“[i]t is hard to conceive of below-range sentences that would be unreasonably
high.” (quotation marks omitted)).
AFFIRMED.

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