United States v. Gonzalez-Noyola

193 F. App'x 690

Opinion

MEMORANDUM

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Appellant Fernando Gonzalez-Noyola appeals his conviction and one-hundred month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we remand pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc).

Gonzalez-Noyola claims the district court erred by declining to offer an entrapment-by-estoppel jury instruction. However, he did not adduce any evidence from which a reasonable trier of fact could conclude that the Border Patrol agents who purportedly dropped him off in San Diego, instead of executing his warrant of deportation, were authorized government officials empowered to advise him whether he could stay in this country legally. See United States v. Brebner, 951 F.2d 1017, 1027 (9th Cir.1991). Therefore, the record of evidence could not rationally support an essential element of the entrapment-byestoppel defense; the district court correctly declined to offer an instruction regarding such defense. See id. at 1024.

We order a limited Ameline remand because Gonzalez-Noyola was sentenced under the mandatory Guidelines regime and “it is not possible to reliably determine from the record whether the sentence imposed would have been materially different had the district court known the Guidelines were advisory.” See Ameline, 409 F.3d at 1084-85.

Conviction AFFIRMED. Sentence REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.