Saldana-Beltran

MEMORANDUM **

Jose Guadalupe Saldana-Beltran appeals his jury conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . He raises two issues on appeal: (1) that the district court erred by rejecting his proposed jury instruction relating to the “official restraint” doctrine; and (2) that the district court enhanced his sentence under § 1326(b) in violation of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and its progeny. We affirm.

Saldana-Beltran argues first that, because he was under official restraint up until the point of his arrest, the district court erred in refusing to give his proffered jury instruction. A criminal defendant is “entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence.” United States v. Fejes, 232 F.3d 696, 702 (9th Cir.2000) (internal quotation omitted). “If the parties dispute whether the required factual foundation exists, we review for abuse of discretion” the district court’s refusal to give the instruction. Id.

A person does not unlawfully enter the United States, and thus does not…