Martinez-Gonzalez

MEMORANDUM *

Fernando Martinez-Gonzalez, a deported alien, was convicted of reentering the United States after having been deported, in violation of 8 U.S.C. § 1326 , and sentenced to 63 months in prison. He appeals his conviction and sentence on four grounds. We affirm.

The relevant facts are known to the parties and are discussed here only briefly and as necessary.

Martinez-Gonzalez first argues that the district court erred in failing to instruct the jury adequately as to his theory of the case. The district court instructed the jury to convict only if it found beyond a reasonable doubt all the elements of the offense, including that “the defendant had the conscious desire to re-enter the United States without consent.” Immediately after listing the elements, the district court instructed the jury as to the defense’s theory of the case, as follows:

That instruction is almost precisely the instruction proposed by the defense, except that the district court rejected one proposed sentence: “If you find that Mr Martinez-Gonzalez made this mistake, Mr. Martinez-Gonzalez is not guilty of the charge of attempted re-entry of deported alien.” Explaining the defense theory is *834…