Garcia

MEMORANDUM *

Defendant Jose Luis Garcia appeals his conviction and sentence for violating 8 U.S.C. § 1326 , which prohibits previously deported aliens from attempting to enter the United States without the consent of *255 the Attorney General. Garcia argues that the district court committed reversible error by (1) refusing to give his requested theory of the defense instruction, (2) improperly admitting hearsay documents, (3) allowing a lay witness to give expert testimony, and (4) incorrectly awarding a 16-level sentence enhancement. We affirm Garcia’s conviction but remand the sentence to the district court for resentencing.

Garcia contends that the district court should have instructed the jury that Garcia’s theory of the defense was that he believed that he was a United States citizen and therefore that he was authorized to enter the United States. Because of the failure to instruct the jury as to the defense theory, Garcia argues, the jury was not informed of the requirement that Garcia possess a subjective intent to enter the United States without consent.

Garcia’s argument is flawed, however, because the instructions the court gave adequately covered Garcia’s defense…