United States of America v. Jose Eduardo Lopez-Padilla, a/k/a Jose Padilla Lopez, a/k/a Jose Lopez-Navarro,…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE EDUARDO LOPEZ-PADILLA, a/k/a Jose Padilla Lopez, a/k/a
Jose Lopez-Navarro, a/k/a Jose Naun Lopez Padilla, a/k/a
Jose Navarro Lopez, a/k/a Jose Padilla Navarro,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00035-MR-DLH-1)
Submitted: October 9, 2013 Decided: October 22, 2013
Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, William M. Miller, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose Eduardo Lopez-Padilla appeals his conviction
after a conditional guilty plea to illegal reentry of a deported
alien in violation of 8 U.S.C. § 1326(a) (2006). On appeal, he
contends that the district court erred in prohibiting him from
presenting a defense of necessity to the charge. We affirm.
“[A] defendant is entitled to an instruction as to any
recognized defense for which there exists evidence sufficient
for a reasonable jury to find in his favor.” United States v.
Ricks, 573 F.3d 198, 200 (4th Cir. 2009) (citation and internal
quotation marks omitted). The defendant bears the burden of
proving an affirmative defense by a preponderance of the
evidence. Dixon v. United States, 548 U.S. 1, 17 (2006).
Where there is insufficient evidence to support any
element of an affirmative defense, a district court may preclude
a defendant from presenting evidence of the defense at trial and
may refuse to instruct the jury on the defense. United States
v. Bailey, 444 U.S. 394, 415-16 (1980); United States v. Sarno,
24 F.3d 618, 621 (4th Cir. 1994). A district court’s refusal to
instruct the jury on a defense presents a question of law that
we review de novo. Ricks, 573 F.3d at 200 (citation omitted).
We have reviewed the record and conclude that the
district court did not err in prohibiting Lopez-Padilla from
presenting his defense of necessity to the jury based on the

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proffered evidence. Even assuming that Congress contemplated
the defense when it enacted 8 U.S.C. § 1326(a), see United
States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490-91
(2001); United States v. Gore, 592 F.3d 489, 492 (4th Cir.
2010), the proffered evidence was insufficient as a matter of
law for a reasonable jury to find in his favor on all of the
elements of the defense, see Bailey, 444 U.S. at 410-15; United
States v. Cassidy, 616 F.2d 101, 102 (4th Cir. 1979).
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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