Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding D.C. No.9:08-CR-00023-DWM-1.
The opinion of the court was delivered by: Callahan, Circuit Judge
Argued and Submitted October 13, 2009 -- Seattle, Washington.
Before: Richard D. Cudahy,*fn1 Senior Circuit Judge, Johnnie B. Rawlinson and Consuelo M. Callahan, Circuit Judges.
Jose Ines Ambriz-Ambriz (Ambriz) challenges the jury instructions and his conviction of being a previously removed alien found in the United States in violation of 8 U.S.C. § 1326. He asserts that because he was detained at a port of entry he was entitled to a jury instruction addressing the official restraint doctrine. We conclude that because Ambriz had not legally left the United States on the date of his detention, and was not entering the United States from a foreign country, the official restraint doctrine is inapplicable, and we affirm his conviction and sentence.
Ambriz, a Mexican citizen, was convicted of an aggravated felony in 1980 and deported from the United States in 1985. Sometime thereafter, he reentered the United States without inspection or permission.
It appears that on February 28, 2008, Ambriz sought to travel by car from the United States to Canada, possibly for some medical procedure. In any event, the vehicle in which he was traveling with two other individuals was denied entry into Canada. As a result, the vehicle was forced to proceed back into the United States where it stopped for inspection at the Roosville Port of Entry.
A U.S. Customs and Border Patrol Agent requested that Ambriz produce some identification. Ambriz claimed to be a United States citizen and produced a California driver's license. The officer directed the driver of the vehicle to pull into a secondary inspection area for further investigation. When fingerprints and a record check revealed that Ambriz was a Mexican citizen and had been previously deported, he was arrested.
One of the officers responsible for transporting Ambriz from the port of entry to the Sheriff's Office in Missoula testified at trial that Ambriz confessed to his illegal presence in the United States. The officer testified that Ambriz "said something to the effect of 'I'm tired of being illegal in your country and I'm tired of hiding.' " Ambriz did not object to the admission of this statement at trial.
Ambriz was indicted for illegal re-entry in violation of 8 U.S.C. § 1326(a). Section 1326(a) states, in relevant part:
any alien who - - (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States . . . ...