Lombera-Valdovinos

I. Background

At trial, Border Patrol agent Guillermo Avila testified to the following facts. On October 29, 2003, Avila was patrolling the U.S.-Mexican border. He sat in a marked border patrol vehicle between the “primary fence,” marking the actual U.S./ Mexican border, and the “secondary fence,” located about 100 feet north of the primary fence. With binoculars, Avila saw the defendant and four or five others standing on the Mexico side of the border, about 200 yards away from Avila. Avila then looked away for about 15 seconds; when he turned back, he saw the defendant, alone and now on the U.S. side of the primary fence, walking directly toward him. When the defen- dant continued to walk toward Avila, Avila drove toward him. When they met, the defendant stated, “I want to see an immi- gration judge,” admitted to being a citizen of Mexico and, when asked if he had any legal basis for being present in the United States, answered, “No.” He also said that he “wished to go back to jail.” Avila arrested and searched the defendant. The defendant has been deported several times on previous occasions.

II. Discussion

“We review de novo the district court’s denial of a Rule 29 motion…