Summary Calendar UNITED STATES OF AMERICA v. Denis Flores-Vasquez

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-10827
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DENIS FLORES-VASQUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:07-CR-11-1
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Denis Flores-Vasquez challenges his conviction and sentence for illegal
reentry after deportation, in violation of 8 U.S.C. § 1326; 6 U.S.C. §§ 202(3),
202(4), 557. He first argues that the district court abused its discretion by
refusing to instruct the jury regarding the defense of duress. He contends that,
when he illegally reentered the United States in 2007, he was “fleeing for his
life” from a gang in Honduras who, in 2004, had murdered his business partner,
severely beaten him, and had continued to threaten him. However, an objective
United States Court of Appeals
Fifth Circuit
F I L E D
May 23, 2008
Charles R. Fulbruge III
Clerk

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review of the evidence, including the testimony of Flores-Vasquez, does not
establish that he was under a “present, imminent, and impending” threat of
death or serious bodily injury when he illegally reentered the United States in
January 2007. See United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir.
1998); see also United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994) (finding
that the requirements of duress in Posada-Rios are “ addressed to the impact of
a threat on a reasonable person). Because Flores-Vasquez has not presented
evidence sufficient to support a defense of duress jury instruction, the district
court did not abuse its discretion in refusing to present this charge to the jury.
See United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994).
Flores-Vasquez also argues that the district court erred by denying an
acceptance of responsibility reduction U.S.S.G. § 3E1.1(a). He argues that,
because he admitted the factual elements of the offense, and only went to trial
to show that the defense of duress presented a “legal excuse’ to his actions, his
decision to go to trial constitutes a “rare situation” as described in U.S.S.G.
§ 3E1.1(a), comment. (n.2) and in United States v. Sam, 467 F. 3d 857, 862-64
(5th Cir. 2006), that justifies a reduction for acceptance of responsibility. This
court need not reach this issue, however, because Flores-Vasquez’s pretrial
statements do not evidence an intent to accept responsibility for his actions. See
§ 3E1.1(a), comment. (n.2).
Flores-Vasquez argues that the district court adopted the Government’s
erroneous position that he “had made no pre-trial statement indicating his guilt
of the offense.” The Government’s position at sentencing, however, was that
Flores-Vasquez had not made any statements evidencing an intent to plead
guilty or accept responsibility before trial. The Government’s position, adopted
by the district court, is supported by the record. There is no indication that
Flores-Vasquez intended to plead guilty, and his conduct pre-trial did reflect an
acceptance of responsibility. Flores-Vasquez lied to law enforcement officers
about his country of origin and his identity. Flores-Vasquez was properly

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identified only after immigration officials checked his fingerprints. Moreover,
the record indicates that Flores-Vasquez did not assert the defense of duress
until trial had already started. Thus, the district court’s denial of the reduction
is not “without foundation.” See United States v. Solis, 299 F.3d 420, 458 (5th
Cir. 2002); see also § 3E1.1(a), comment. (n.20).
AFFIRMED.

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