United States v. Rodolfo Ibarra

MEMORANDUM

Defendant-Appellant Rodolfo Ponce Ibarra (“Ibarra”) appeals his conviction for reentry as a removed alien in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court correctly concluded that Ibarra’s offer of proof was insufficient as a matter of law to support his proffered necessity defense. Ibarra failed to show that a reasonable jury could conclude that he entered the United States in order to prevent imminent harm, or that he had no legal alternative to violating the law. See United States v. Arellano-Rivera, 244 F.3d 1119, 1125-26 (9th Cir.2001).

The district court neither misapplied U.S.S.G. § 3E1.1 nor clearly erred in determining that Ibarra failed to clearly demonstrate acceptance of responsibility for his offense. See U.S.S.G. § 3E1.1 cmt. n. 1 (listing factors the district court may consider in determining whether an adjustment is warranted).

Ibarra argues that the district court erroneously concluded that he was not eligible for an adjustment for acceptance of responsibility because hé asserted a duress defense. It is true that a defendant’s assertion of duress or necessity as an affirmative defense…