Diaz-Guerrero

MEMORANDUM *

Angel Joel Diaz-Guerrero appeals his conviction and sentence for being an alien found in the United States following deportation in violation of 8 U.S.C. § 1326 . He was sentenced to 77 months in custody and three years of supervised release. Before trial, Diaz-Guerro moved to dismiss the indictment, claiming that he had obtained derivative citizenship of the United States pursuant to 8 U.S.C. § 1432 (1982) through his mother’s naturalization. The district court denied the motion, ruling that because this was a factual dispute, and because the government had to prove that Diaz-Guerrero was an alien for purposes of 8 U.S.C. § 1326 , Diaz-Guerrero should submit a proposed jury instruction regarding his citizenship. After Diaz-Guerrero submitted the proposed jury instruction, the district court, relying upon Schneider v. INS, 65 F.Supp. 377, 380 (W.D.Wash.1946), aff'd sub nom., 161 F.2d 1022 (9th Cir.1947), held that Diaz-Guerrero could not show citizenship as a matter of law, because he had neither legally entered nor was legally residing in the Unit *740 ed States. The court therefore rejected Diaz-Guerrero’s proposed instruction. We have jurisdiction pursuant to 28…