United States v. Martin Hernandez-Sustaita

MEMORANDUM

Martin Hernandez-Sustaita appeals his jury conviction and sentence for illegal reentry. Because the parties are familiar with the factual and procedural history of this case, we do not repeat it here. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

The district court declined to give Hernandez-Sustaita’s requested jury in struction defining “enter” as “[t]hose who seek to enter in the sense of the law, and those the policy of the law seeks to prevent from entering, are those who come to stay permanently, or for a period of time, or to go at large and at will within the United States.” The government presented evidence that Hernandez-Sustaita approached officer Marvin Alvarenga when Alvarenga was working “outbound” pedestrian traffic — encountering people going south from the United States into Mexico — at the Nogales, Arizona port of entry. Alvarenga testified that upon request for identification, Hernandez-Sustaita presented a Mexican identification card and volunteered that he was in the United States illegally. Hernandez-Sustaita was not under any restraint before he approached Alvarenga, and was therefore free to go “at will” -within the United…