United States v. Miguel Garcia

MEMORANDUM

Miguel Ascencio Garcia (“Ascencio”) appeals his conviction under 8 U.S.C. § 1326 of being a removed alien found in the United States without the consent of the Attorney General. He argues that the district court erred in denying his motion to dismiss the indictment and in precluding the defense of entrapment by estoppel. We affirm.

1. The district court did not err in denying Ascencio’s request for a jury instruction on entrapment by estoppel. A defendant attempting to raise the defense of entrapment by estoppel against a federal statute must have reasonably relied on a federal agent’s mistaken advice. United States v. Collins, 61 F.3d 1379, 1385 (9th Cir. 1995). That federal official must affirmatively represent that the proscribed conduct is in fact permissible. United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000) (per curiam). Ascencio relied on the statement of a state judge, not a federal official.

Moreover, that state judge did not affirmatively tell Ascencio that he could legally remain in the United States; she only instructed him to report to the probation office. Our case law is clear that once a removed alien voluntarily reenters the…