Bustamante-Rocha

MEMORANDUM **

Jorge Bustamante-Rocha challenges his conviction and sentence for attempted entry into the United States after deportation. We affirm his conviction, but remand his sentence pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

Bustamante-Rocha asserts four challenges to his conviction. We reject them in turn. First, the facts established at trial were sufficient to establish the jurisdiction of the district court. Although Bustamante-Rocha was arrested while he was under official restraint at the port of entry and therefore not “in the United States” as that phrase has been defined under the Immigration and Nationality Act, he nevertheless crossed the boundary into U.S. territory and thus violated the attempt provision of 8 U.S.C. § 1326 (a)(2). See United States v. Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir.2002). These facts support the district court’s exercise of jurisdiction under 18 U.S.C. § 3231 .

Second, these facts are also sufficient to support Bustamante-Rocha’s conviction. Contrary to his assertion, “[t]he mere fact that an alien is under official restraint does not make substantial steps toward entry impossible.”…