Fernandez-Ruiz

MEMORANDUM ***

Roberto Fernandez-Ruiz appeals his conviction for attempted illegal reentry *480 into the United States after deportation in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The Supreme Court’s recent decision in United States v. Resendiz-Ponce, — U.S. -, 127 S.Ct. 782 , 166 L.Ed.2d 591 (2007), forecloses Fernandez-Ruiz’s argument that his indictment was insufficient as a matter of law due to its failure to allege an overt act.

The district court did not abuse its discretion by rejecting Fernandez-Ruiz’s proposed jury instructions. The first proposed instruction purports to define the term “illegal reentry.” The district court properly rejected this instruction because it is confusing and ambiguous, it misstates the law, and it fails to support Fernandez-Ruiz’s theory of defense. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir.2000) (en banc) (listing elements of attempted illegal reentry after deportation). The second and third proposed instructions supply, respectively, definitions for the terms “attempt” and “culpable intent,” but these instructions are sufficiently similar to the instructions…