United States v. Popoca-Anselmo

110 F. App'x 331

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 6, 2004
• Docket: 04-4039
• Status: Unpublished

Opinion

PER CURIAM:

Manuel Popoca-Anselmo appeals his conviction for illegal reentry into the United States following deportation, in violation of 18 U.S.C. §§ 1326(a), (b)(2) (2000).

Popoea-Anselmo’s sole contention on appeal is that the district court erred by refusing to instruct the jury on the defense of duress. Popoca-Anselmo asserts that he returned to this country, albeit without permission, to avoid death threats made against him in his native country of Mexico. This court reviews de novo a district court’s decision not to instruct a jury on a defendant’s theory of a case. United States v. Singh, 54 F.3d 1182, 1189 (4th Cir.1995). Where there is insufficient evidence, as a matter of law, to support an element of the affirmative defense, the defendant can be precluded from presenting any evidence of duress to the jury. United States v. Sarno, 24 F.3d 618, 621 (4th Cir.1994).

In order to establish a claim of duress, the defendant must show that: (1) he acted under an immediate threat of serious bodily injury; (2) he had a well-grounded belief that the threat would be carried out; and (3) he had no reasonable opportunity to avoid violating the law and the threatened harm. United States v. Bailey, 444 U.S. 394, 410-15, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); United States v. King, 879 F.2d 137, 138-39 (4th Cir.1989). A defendant has the burden of establishing sufficient evidence of all three elements of the defense. Bailey, 444 U.S. at 415, 100 S.Ct. 624; Tanner, 941 F.2d at 588.

After careful review of the record, we conclude, as the district court found, that Popoea-Anselmo did not avail himself of reasonable opportunities to avoid violating the law and the threatened harm. Bailey, 444 U.S. at 410-15, 100 S.Ct. 624. Accordingly, we find that Popoea-Anselmo has not met his burden, and the district court properly refused to instruct the jury on the affirmative defense of duress. Id.; Singh, 54 F.3d at 1189. We therefore affirm Popoca-Anselmo’s conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED