Marguet-Pillado

Opinion by Judge GWIN; Dissent by Judge N.R. SMITH.

OPINION

Defendant-Appellant Carlos Marguet-Pillado (“Margueh-Pillado”) appeals his conviction for being a previously-removed alien found in the United States, in violation of 8 U.S.C. § 1326 . With his appeal, Margueh-Pillado argues that the district court erred in refusing to give a requested jury instruction. The instruction would have permitted Marguet-Pillado to argue that the government had failed to establish that Margueb-Pillado was an alien who had not obtained derivative citizenship from his step-father, a United States citizen listed on Marguet-Pillado’s birth certificate as his father. The district court rejected the instruction after finding that an earlier appeal in this case relieved the government of the burden of establishing alien-age in the second trial. Because we find that in the second trial, MargueL-Pillado could require the government to come forward with proof that MargueL-Pillado was an alien and did not have derivative citizenship, we REVERSE Marguet-Pillado’s conviction and remand this case for a new trial.

*1004 I. Background

Defendant-Appellant Carlos Marguet-Pillado was born in Tijuana, Mexico,…

dissenting:

I cannot understand why the majority opinion fails to follow a decision of the Ninth Circuit without asking for a sua sponte en banc proceeding. While MargueNPillado is entitled to have a jury determine whether he is an alien, he is not entitled to a jury instruction contrary to the law propounded by our circuit in United States v. Marguet-Pillado, 560 F.3d 1078 (9th Cir.2009) (Marguet-Pillado I). Therefore, I must dissent.

To get a conviction here, the government was required to prove that Marguet-Pillado was an alien, defined as “any person not a citizen or national of the United States.” See 8 U.S.C. § 1101 (a)(3). The government presented evidence that Marguefi-Pillado was born in Mexico, entered the U.S. on a non-immigrant visa, was granted legal permanent resident status, and had been deported to Mexico. Given this uncontradicted evidence, there is no question the government could meet its burden of proof. Despite earlier admitting that the Ninth Circuit’s prior decision precluded him from arguing that he had derivative citizenship, Marguet-Pillado asked the district court to include a jury instruction on derivative citizenship. The district court refused the…

Laura Duffy, Bruce R. Castetter, and Steve Miller, Office of the United States Attorney, for the plaintiff-appellee.

Gregory Thomas Murphy, Janet Tung, Vincent James Brunkow, and Devin Burstein, Federal Defenders of San Diego, Inc., for the defendant-appellant.

Before: BETTY B. FLETCHER and N. RANDY SMITH, Circuit Judges, and JAMES S. GWIN, District Judge. [*]

Opinion by Judge GWIN; Dissent by Judge N.R. SMITH.

GWIN, District Judge:

Defendant-Appellant Carlos Marguet-Pillado ("Marguet-Pillado") appeals his conviction for being a previously-removed alien found in the United States, in violation of 8 U.S.C. § 1326 . With his appeal, Marguet-Pillado argues that the district court erred in refusing to give a requested jury instruction. The instruction would have permitted Marguet-Pillado to argue that the government had failed to establish that Marguet-Pillado was an alien who had not obtained derivative citizenship from his step-father, a United States citizen listed on Marguet-Pillado's birth certificate as his father. The district court rejected the instruction after finding that an earlier appeal in this case relieved the government of the burden of establishing alienage in…