Duress in Illegal-Reentry Cases: Telephone Threats and Speculative Surveillance Are Insufficient to Show an “Immediate Threat”

1. Introduction

In United States v. Bustillos-Perea (10th Cir. May 29, 2026) (unpublished “Order and Judgment”), the Tenth Circuit reviewed whether a defendant charged with unlawful reentry under 8 U.S.C. § 1326(a), (b) was entitled to present a duress defense to the jury.

Parties. The United States prosecuted Gonzalo Bustillos-Perea, a Mexican citizen with multiple prior unlawful entries and four prior unlawful-reentry convictions. After being removed on March 29, 2024, he was found in New Mexico on April 20, 2024 and charged again. His supervised release (from a prior unlawful-reentry sentence) was also revoked based on the new reentry.

Core issue. Whether the district court abused its discretion by barring the duress defense before trial, concluding the defense proffer failed to establish the required elements—most importantly, an immediate threat of death or serious bodily injury.

2. Summary of the Opinion

The Tenth Circuit affirmed both judgments. It held the district court did not abuse its discretion in excluding the duress defense because Bustillos-Perea’s proffered evidence did not permit a jury to find (by a preponderance) the first duress element: an immediate threat.

• The alleged threats consisted primarily of telephone death threats beginning in 2022 after the defendant reported his father’s murder. The court found these threats were directed at an unspecified future time, not an immediate harm.
• Evidence that a van followed a bus to Ciudad Juárez did not cure the deficiency because the proffer was speculative as to who was in the van and what their intentions were; there was no indication of an imminent attack.
• The panel declined to address other duress elements (reasonable alternatives, surrender requirement), because failure on any single element defeats the defense.
• Even if the district court wrongly suggested duress was incompatible with unlawful reentry as a general-intent crime, any such error was harmless because the defense independently failed on the duress elements.

3. Analysis

A. Precedents Cited

United States v. Dixon

Dixon supplies the central framework: (1) the district court acts as a gatekeeper when deciding whether a duress defense may go to the jury, and (2) the defendant must proffer evidence sufficient for a jury to find each element by a preponderance of the evidence. The panel also relied on Dixon for the appellate standard: abuse of discretion for the gatekeeping decision, with legal conclusions effectively reviewed de novo.

United States v. Beckstrom

The defendant invoked Beckstrom for the phrase “some evidence,” but the panel rejected that characterization by citing United States v. Dixon (which had already rejected the same argument). The practical effect is to reaffirm that, in this circuit, duress must be supported by enough evidence to satisfy a preponderance threshold on each element before it reaches the jury.

United States v. Portillo-Vega

Portillo-Vega provides the Tenth Circuit’s standard three-part duress test: (1) immediate threat, (2) well-grounded fear the threat will be carried out, and (3) no reasonable opportunity to escape. It also adds an element specific to unlawful reentry: because illegal reentry is a continuing offense, the defendant must proffer evidence of a bona fide effort to surrender once duress loses coercive force. Although the panel did not reach surrender, Portillo-Vega frames why duress is scrutinized particularly closely in reentry cases.

United States v. Marceleno

Marceleno is the key comparator on immediacy. There, an in-person smuggler’s threat to stab the defendant if he did not continue a journey was “immediate,” i.e., not directed at some future time. The panel distinguished Marceleno because Bustillos-Perea’s threats were remote (telephone threats over a long period) and lacked an in-person coercive confrontation tied to a specific moment of compelled action.

United States v. Wattleton

The panel cited Wattleton (11th Cir.) to emphasize the “rigorous” immediacy requirement: generalized fear of future harm is insufficient. This supported the conclusion that threats of eventual harm—without a concrete, imminent trigger—do not satisfy element one.

United States v. Chi Tong Kuok

The defendant relied on Chi Tong Kuok (9th Cir.), where threats were deemed immediate because harm would be the direct, specific consequence of refusing ongoing commands, and the coercer repeatedly demonstrated tracking capability. The panel distinguished it on two grounds: (1) Bustillos-Perea’s threats were not contingent on a demanded act of compliance (they were retaliation for a past report), and (2) there was no comparable demonstration of tracking/control establishing imminent enforcement of the threat.

United States v. Contento-Pachon

The opinion treated Contento-Pachon (9th Cir.) as fact-bound: there, threats were reinforced by intimate personal knowledge and a promise that the defendant would be watched “at all times” during the trip, making them non-vague and practically immediate. Here, the proffer lacked comparable evidence of active monitoring or enforcement capability at the relevant time.

United States v. Dingwall

The defendant cited Dingwall (7th Cir.) for the proposition that immediacy does not always require physical presence of the threat. The panel found it unpersuasive in context because Dingwall addressed battered-woman syndrome and expert evidence about coercive control—facts and doctrinal considerations not present in Bustillos-Perea’s proffer.

B. Legal Reasoning

The court’s reasoning turns on the gatekeeping function: a duress defense is not automatically available whenever a defendant asserts fear; the defendant must proffer enough evidence to allow a reasonable jury to find each element by a preponderance.

On the first element—immediate threat of death or serious bodily injury—the panel treated “immediate” as demanding more than a persistent risk. It requires a threat poised to be carried out now (or as a direct and specific consequence of noncompliance), not “at some future, unspecified time.” In the panel’s view, two features defeated immediacy:

1. Temporal and contextual vagueness of the telephone threats. The threats began in 2022 and did not include action suggesting imminent execution.
2. Speculation about the van. The proffer established only a belief that gang members were in the van and did not show threatening acts beyond following the bus. The court accepted the district judge’s characterization as “somewhat speculative” regarding identity, intention, and immediacy.

Having found the first element unsatisfied, the panel applied its own precedent that the defense fails if any single element fails, and it therefore did not analyze reasonable alternatives or the continuing-offense surrender requirement.

C. Impact

Although designated nonprecedential, the decision is a clear signal of how the Tenth Circuit evaluates duress proffers in unlawful-reentry cases:

• Telephone threats alone—especially when long-running and not tied to an imminent enforcement event—will rarely satisfy the “immediate threat” element without corroborating facts indicating impending harm.
• Speculative surveillance evidence (e.g., “we believed a vehicle was them”) is unlikely to establish immediacy unless paired with concrete indicators (identification, overt acts, proximity plus threatening conduct, or a demonstrated ability and intent to carry out harm at that moment).
• Litigants should expect district courts to enforce the Dixon preponderance-based gatekeeping standard and to require a fact-specific showing before allowing the jury to hear duress evidence that could invite nullification-like reasoning in general-intent prosecutions.
• The opinion also illustrates a practical appellate point: even potentially problematic remarks about general intent may be deemed harmless if the duress proffer independently fails the elements.

4. Complex Concepts Simplified

• Duress defense (affirmative defense): A justification/excuse claim where the defendant admits the act but argues it was compelled by an imminent threat and there was no safe, reasonable alternative.
• Immediate threat: Not just “I might be harmed”; it means danger is pressing—about to occur—or is the direct, specific consequence of not doing what the coercer demands.
• Preponderance of the evidence (for submitting duress): The defendant’s proffer must be sufficient for a jury to find the element “more likely than not.” This is a screening threshold to decide if the jury may consider the defense at all.
• Continuing offense (illegal reentry): The crime is treated as ongoing after entry, which is why Portillo-Vega requires evidence of an effort to surrender once the coercion ends.
• Motion in limine: A pretrial request to exclude (or admit) categories of evidence to shape what the jury will hear.
• General-intent crime: The government need not prove the defendant acted with a particular ulterior purpose; however, affirmative defenses like duress can still matter because they excuse otherwise criminal conduct. Here, any confusion about that point did not change the outcome because the duress elements were not met.
• Harmless error (Fed. R. Crim. P. 52(a)): Even if the trial court made a legal mistake, the conviction stands if the mistake did not affect substantial rights or the outcome.

5. Conclusion

United States v. Bustillos-Perea reinforces a strict, element-by-element gatekeeping approach to duress in unlawful-reentry prosecutions. The Tenth Circuit held that long-running telephone threats and a speculative inference of surveillance (a van following a bus) did not establish the required immediacy of threat. The decision underscores that duress in § 1326 cases requires concrete, non-speculative evidence of imminent harm, not generalized fear of eventual violence, and it illustrates how appellate courts may avoid broader doctrinal disputes (such as general-intent framing) by resolving the case on the defendant’s failure to satisfy a core duress element.