Date: Jun 2, 2026

Telephone Threats and Speculative Surveillance Are Insufficient “Immediacy” for a Duress Defense to Unlawful Reentry

1. Introduction

In United States v. Bustillos-Perea (10th Cir. May 29, 2026) (Order and Judgment), the Tenth Circuit affirmed a conviction for unlawful reentry under 8 U.S.C. § 1326(a), (b) and a related supervised-release revocation. The central issue on appeal was whether the district court erred by acting as a gatekeeper and refusing to allow the defendant to present a duress defense to the jury.

The defendant, Gonzalo Bustillos-Perea, proffered that a Mexican gang murdered his father and later threatened to kill him for reporting the murder to police. After he was removed to Mexico, he returned to the United States less than a month later and was apprehended in New Mexico. He sought to argue that he reentered under duress.

The appeal thus squarely presented a recurring question in unlawful-reentry cases: what qualifies as an “immediate” threat sufficient to let a duress theory go to the jury—particularly when threats are communicated remotely and the claimed danger is chronic rather than time-specific.

2. Summary of the Opinion

The Tenth Circuit affirmed. Applying its established duress framework, the court held that the district court did not abuse its discretion in finding the defendant’s proffer insufficient on the first element of duress: an immediate threat of death or serious bodily injury.

The panel emphasized that the threats described were largely telephone threats beginning in 2022 and directed at an unspecified future time, and that the additional evidence (a van allegedly following a bus) was speculative and did not demonstrate immediate peril. Because the duress defense fails if any element is not sufficiently supported, the court did not reach the remaining elements.

The defendant also argued the district court incorrectly relied on unlawful reentry being a general-intent offense when discussing exclusion of motive evidence. The Tenth Circuit did not resolve whether that was legal error; it held any such error was harmless because the defendant independently failed to make the required duress showing.

3. Analysis

3.1. Precedents Cited

Gatekeeping standard and quantum of proof: United States v. Dixon and United States v. Beckstrom

The court anchored its review in United States v. Dixon, which frames duress as an affirmative defense requiring a defendant to produce sufficient evidence to permit a jury to find each element in the defendant’s favor by a preponderance. Dixon also defines appellate review as deferential to the trial court’s “gatekeeper” role (abuse of discretion), while clarifying that legal sufficiency is ultimately a legal question (with legal errors reviewed effectively de novo).

The defendant attempted to lower the threshold by invoking United States v. Beckstrom (quoted for “some evidence”), but the panel rejected that move based on Dixon, which had already rejected the same argument. This confirms that, in the Tenth Circuit, duress does not reach the jury on minimal evidence; it requires a proffer robust enough to satisfy a preponderance-based sufficiency screen.

Elements of duress and continuing-offense overlay: United States v. Portillo-Vega

The panel applied United States v. Portillo-Vega for the three core elements of duress: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm.

Importantly, Portillo-Vega adds a specialized requirement in unlawful-reentry cases: because illegal reentry is a continuing offense, the defendant must also proffer evidence of a bona fide effort to surrender once the coercive force dissipates. Although the panel did not reach this element (having found element one lacking), its citation reinforces that unlawful reentry duress claims face a higher practical bar than “moment-in-time” offenses.

Immediacy requirement and “future harm” principle: United States v. Marceleno and United States v. Wattleton

The court relied heavily on United States v. Marceleno for the proposition that immediacy is rigorous: a threat generally must be “immediate” and cannot be “directed at sometime in the future.” The court also cited United States v. Wattleton (11th Cir.) to reinforce that fear of future harm is not enough.

The panel then distinguished Marceleno on its facts. There, a smuggler threatened to stab the defendant if he did not continue the journey into the United States—an in-person, direct, contemporaneous ultimatum. Here, the threats were remote (by telephone), long-running (beginning in 2022), and not tethered to a specific moment requiring immediate compliance at the time of reentry.

Out-of-circuit comparators distinguished: United States v. Chi Tong Kuok, United States v. Contento-Pachon, and United States v. Dingwall

The defendant invoked several out-of-circuit decisions to argue immediacy can exist without a weapon or physical confrontation. The panel treated these cases as fact-specific and distinguishable:

United States v. Chi Tong Kuok (9th Cir.): immediacy was supported by highly specific, demonstrated surveillance and an explicit conditional consequence—harm would be the “specific and direct consequence” of refusing commands. By contrast, the threats here were not framed as an immediate consequence of noncompliance at the time of reentry and lacked demonstrated tracking comparable to Kuok.
United States v. Contento-Pachon (9th Cir.): the threats were accompanied by proof the defendant would be watched continuously by accomplices during the trip, making harm imminent upon deviation. Here, the “van following the bus” proffer rested on belief and inference without concrete acts or corroboration beyond following.
United States v. Dingwall (7th Cir.): focused on battered-woman syndrome and expert evidence explaining coercive dynamics. The panel found it unpersuasive for the immediacy question in this case, which did not involve that evidentiary framework.

3.2. Legal Reasoning

(a) The duress defense is screened before trial

The opinion underscores that duress is not automatically a jury question merely because a defendant asserts fear. Under Dixon, the district court must determine whether the proffer, if believed, would allow a jury to find each element by a preponderance. This gatekeeping function prevents speculative defenses from introducing motive narratives that could distract from elements of the charged offense.

(b) “Immediacy” was the decisive failure

The panel held the defendant’s proffer did not show an immediate threat. Two aspects were central:

Temporal and conditional vagueness of telephone threats: threats beginning in 2022 and continuing as “random phone calls” did not identify a concrete, imminent moment of harm. The court treated them as threats “directed at some future, unspecified time.”
Speculation about the van: the proffer that the couple “believe[d]” the van contained gang members lacked specific facts showing the occupants’ identity or intent, and there was no indication they attempted an attack or issued an ultimatum at that moment.

The court added an important clarification: it did not adopt a categorical rule that telephone threats can never satisfy immediacy. Rather, on these facts, the threats did not “rise to that level.” This leaves room for future defendants to establish immediacy through more concrete evidence—e.g., explicit deadlines, real-time monitoring, immediate pursuit, or a specific conditional ultimatum.

(c) Avoidance of other elements

Citing United States v. Marceleno, the panel reiterated that failure on any one element defeats duress. By resolving the case on immediacy alone, the court avoided developing the record on “reasonable alternatives” (relocation, asylum seeking, surrender) and the continuing-offense surrender requirement from Portillo-Vega. The practical takeaway is that in the Tenth Circuit, immediacy can serve as a threshold filter that prevents duress from reaching the jury even when the broader narrative suggests persistent danger.

(d) General-intent discussion and harmless error

The defendant challenged the district court’s statements suggesting that because unlawful reentry is a general-intent crime, “any specific intent to come into the United States is irrelevant.” The Tenth Circuit sidestepped deciding whether those statements reflected an improper basis for excluding duress evidence. Instead, it held any error was harmless under Fed. R. Crim. P. 52(a) because the district court also made an independent, sufficient ruling: the proffer did not satisfy duress elements.

This is significant: even if a district court mischaracterizes the relationship between mens rea and affirmative defenses, an appellate court may affirm if the duress proffer fails on its own terms.

3.3. Impact

Reinforces a high evidentiary threshold for duress in § 1326 cases: defendants must present concrete, non-speculative facts showing imminence, not merely generalized danger from cartel or gang violence.
Signals what is missing in many “fear-based” reentry defenses: proof of immediate pursuit, explicit deadlines or ultimatums, credible corroboration of surveillance, or a close temporal nexus between threat and unlawful entry.
Preserves flexibility (no categorical bar): the court expressly left open that telephone threats could, in other circumstances, satisfy immediacy—encouraging future litigants to focus on specificity and corroboration.
Harmless-error backstop: even if a trial court’s “general-intent” framing is questionable, appellate review may still affirm where the duress elements are not adequately proffered.
Persuasive, not binding: as an “Order and Judgment,” it is not binding precedent (except law of the case, res judicata, collateral estoppel), but it provides a detailed roadmap for district courts in the circuit confronting similar duress proffers.

4. Complex Concepts Simplified

Duress (affirmative defense): a defendant admits the conduct occurred but claims it was compelled by an immediate threat, leaving no reasonable escape. The defendant must support each element with sufficient evidence before the jury can consider it.
Immediate threat: not merely “serious” or “credible” danger in general, but danger that is pressing and imminent—typically not a vague promise of harm at an unknown future time.
Preponderance of the evidence (for the duress proffer): enough evidence that a jury could find it more likely than not that each duress element is satisfied.
Continuing offense (illegal reentry): the crime is treated as ongoing while the person remains unlawfully present; thus, duress doctrine requires a bona fide effort to surrender once the coercion ends (from United States v. Portillo-Vega).
General-intent crime: the government typically need not prove a specific purpose beyond intentionally doing the prohibited act. But general intent does not automatically eliminate affirmative defenses; the key dispute here was whether the duress proffer met its elements, not merely whether motive was “irrelevant.”
Motion in limine: a pretrial request to exclude certain categories of evidence; here, the government sought to exclude evidence about why the defendant reentered, and the defendant later tried to reintroduce the issue via duress.
Abuse of discretion vs. de novo: evidentiary gatekeeping is reviewed deferentially, but legal errors (misstating the duress standard) are reviewed without deference.

5. Conclusion

United States v. Bustillos-Perea reinforces that, in the Tenth Circuit, the duress defense in unlawful-reentry prosecutions demands a concrete showing of immediacy, not generalized or long-running fear. Telephone threats—without specific, imminent action or corroborated proof of real-time enforcement—may be deemed too future-oriented to justify presenting duress to the jury. The decision also illustrates how appellate courts may affirm on a clean duress-elements analysis even where the district court’s comments about general intent arguably muddy the conceptual relationship between motive evidence and affirmative defenses.