Telephone Threats and Speculative Surveillance Are Insufficient “Immediate Threats” for a Duress Defense to Illegal Reentry

I. Introduction

In United States v. Bustillos-Perea (10th Cir. May 29, 2026), the Tenth Circuit affirmed a conviction for unlawful reentry, 8 U.S.C. § 1326(a), (b), and an associated supervised-release revocation. The defendant, Gonzalo Bustillos-Perea, a Mexican citizen with multiple prior unlawful-reentry convictions, was removed on March 29, 2024 and apprehended again in New Mexico on April 20, 2024.

The central issue on appeal was whether the district court erred by precluding Bustillos-Perea from presenting a duress defense to the jury. He proffered that a gang killed his father in Mexico, threatened him by telephone after he reported the murder, and (according to supplemental information) may have followed him by van as he traveled toward Ciudad Juárez to approach a port of entry.

II. Summary of the Opinion

The Tenth Circuit held the district court did not abuse its discretion in excluding the duress defense because Bustillos-Perea’s evidentiary proffer was insufficient—particularly as to the first element of duress: an immediate threat of death or serious bodily injury. The court emphasized that long-running, generalized telephone threats and a speculative inference about being followed by a van did not establish the rigorously required immediacy. Having found the first element unsatisfied, the court declined to analyze the remaining duress elements.

The panel also addressed the defendant’s argument that the district court improperly relied on unlawful reentry being a general-intent offense. Without deciding whether that reliance was erroneous, the panel concluded any error was harmless because the duress proffer failed on the elements.

III. Analysis

A. Precedents Cited

1. Gatekeeping, burden, and standard of review: United States v. Dixon and United States v. Beckstrom

The court anchored its approach in United States v. Dixon, which frames the trial judge as a “gatekeeper” on whether a duress defense may go to the jury. Under Dixon, a defendant must “produce[] sufficient evidence that would permit the jury to find in [his] favor by a preponderance on each element of the defense,” and appellate review is for abuse of discretion, with legal conclusions effectively reviewed de novo.

The opinion expressly rejected the defendant’s attempt to dilute that burden to “some evidence,” citing United States v. Beckstrom only to note that Dixon had already rejected the “some evidence” formulation in this context.

2. Duress elements and illegal reentry as a continuing offense: United States v. Portillo-Vega

The panel applied the duress framework from United States v. Portillo-Vega:

  • (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.

It also reiterated Portillo-Vega’s additional requirement for illegal reentry—because it is a continuing offense, the defendant must proffer evidence of a “bona fide effort to surrender as soon as the claimed duress had lost its coercive force.” Although the panel ultimately resolved the case on the “immediate threat” element alone, invoking Portillo-Vega situates duress in § 1326 cases within a demanding temporal framework: the coercion must be immediate, and the defendant must promptly seek lawful submission once it abates.

3. The “immediacy” requirement and its rigor: United States v. Marceleno and United States v. Wattleton

The opinion relied on United States v. Marceleno for the proposition that the threatened harm generally must be “immediate” and not “directed at sometime in the future.” To underscore that immediacy is demanding, it also cited United States v. Wattleton (11th Cir.) for the principle that “fear of future bodily harm” will not suffice.

The panel then distinguished Marceleno on the facts: in Marceleno, a smuggler threatened to stab the defendant to compel continued participation in an ongoing border-crossing operation. That threat was “not directed at sometime in the future,” but instead “immediate.” Here, by contrast, the threats were telephonic, long-running, and not tied to an imminent, in-person act of violence.

4. Defendant’s cited cases and why they did not help

Bustillos-Perea relied on four decisions; the Tenth Circuit found each distinguishable because each involved a concrete mechanism making harm immediate or directly contingent on noncompliance, unlike generalized threats here:

  • United States v. Marceleno: immediate, in-the-moment coercion (“threatened to stab”) driving the border-crossing conduct.
  • United States v. Chi Tong Kuok (9th Cir.): a coercive relationship where harm would be the “specific and direct consequence” of refusal; the threat was reinforced by repeated demonstrations of surveillance and access (photos, calls to an undisclosed home number, knowledge of pregnancy). The panel emphasized that, in Kuok, immediacy was supported by clear conditionality (“if you refuse, then harm follows”) and proven capability.
  • United States v. Contento-Pachon (9th Cir.): threats were backed by intimate knowledge of the defendant’s life and an assurance he would be watched “at all times” during the trip—making the coercion concrete rather than vague or speculative.
  • United States v. Dingwall (7th Cir.): addressed battered-woman syndrome and expert evidence about battering’s effects; the panel found it inapposite because it focused on a distinct evidentiary and psychological context not present here.

The upshot is that the court treated “immediacy” as fact-intensive but consistently requiring more than: (a) threats unconnected to a concrete imminent act, and (b) a defendant’s speculative interpretation of ambiguous behavior.

B. Legal Reasoning

1. The operative rule applied

Applying Dixon and Portillo-Vega, the Tenth Circuit asked whether the proffer, viewed favorably to the defendant, could permit a jury to find duress by a preponderance on each element. The court resolved the appeal on the first element alone: immediate threat.

2. Why the threat was not “immediate” on these facts

The threats began around 2022 and continued into 2024, but were described as telephone death threats without a specific, imminent time or action. The panel characterized them as “directed at some future, unspecified time,” which does not satisfy the duress immediacy requirement as applied in Marceleno.

The supplemental “van following the bus” evidence did not change the analysis because the proffer was only that the defendant and his wife “believe[d]” the occupants were gang members. The court agreed with the district judge that this was “somewhat speculative” regarding the occupants’ identity and intentions, and it noted the proffer did not describe any threatening action beyond following.

Notably, the panel included a limiting clarification: it did not hold that telephone threats can never be immediate; rather, it held that on these circumstances the telephone threats did not rise to the required level.

3. The “general-intent” discussion and harmless error

The defendant argued the district court wrongly suggested that because unlawful reentry is a general-intent crime, “any specific intent” or “specific reason” for reentry was irrelevant—potentially conflating the availability of duress with mens rea.

The Tenth Circuit avoided deciding whether the district court’s “general-intent” rationale was legally mistaken, holding instead that any such error was harmless under Fed. R. Crim. P. 52(a) because the district court independently ruled the duress proffer failed to satisfy the duress elements. In effect, the appellate court treated the elemental insufficiency as a dispositive, alternative ground that prevented any asserted “general-intent” misstep from affecting substantial rights.

C. Impact

Although designated as a nonprecedential “Order and Judgment,” the decision is positioned to carry persuasive weight on a recurring practical question in § 1326 prosecutions: what qualifies as an “immediate threat” sufficient to get duress before a jury.

Key likely effects:

  • Reinforced rigor at the gatekeeping stage: Trial courts in the Tenth Circuit may cite this decision (alongside Dixon, Portillo-Vega, and Marceleno) to require concrete, non-speculative proffers on immediacy before allowing duress evidence at trial.
  • Telephone threats alone are often not enough: Unless tied to imminent action, conditional enforcement, demonstrated capability, or other concrete indicators, generalized threats communicated remotely may fail the “immediate threat” element.
  • Speculation about surveillance is insufficient: The opinion signals that “belief” that pursuers are gang members—without corroborating detail or threatening conduct—will likely not establish immediacy.
  • Harmless-error insulation: Even if a trial judge’s comments about general intent are questionable, appellate courts may affirm if the defendant’s proffer fails the duress elements, encouraging litigants to focus on developing a detailed proffer rather than relying on abstract doctrinal disputes.

IV. Complex Concepts Simplified

  • Duress (affirmative defense): A justification/excuse claim where the defendant admits the conduct but argues it was compelled by an unlawful threat. The defendant bears the burden to present enough evidence on each element to let a jury consider it.
  • “Immediate threat”: Not merely “serious” or “credible,” but imminent—harm is about to occur, not sometime later. Courts often look for concrete indicators (in-person coercion, clear conditionality, active monitoring, demonstrated ability to execute threats).
  • Continuing offense (illegal reentry): The offense is treated as ongoing while the person remains unlawfully present after reentry, which is why the law requires a prompt, genuine effort to surrender once the coercion ends (per Portillo-Vega).
  • General-intent crime: A crime that generally requires intent to do the act (enter/remain) rather than intent to achieve a further consequence. This does not automatically eliminate all defenses; the dispute here was whether the district court improperly treated motive as categorically irrelevant.
  • Harmless error: Even if a court makes a legal mistake, an appellate court will not reverse if the mistake did not affect the outcome or the defendant’s substantial rights.

V. Conclusion

United States v. Bustillos-Perea reaffirms the Tenth Circuit’s demanding gatekeeping approach to duress in unlawful-reentry cases: to reach the jury, the defendant’s proffer must support each duress element by a preponderance, and the “immediate threat” element is particularly rigorous. On these facts, generalized telephone threats extending over time, combined with speculative inferences about being followed, did not establish an imminent threat of death or serious bodily injury. The court further held that any potential misstep in the district court’s “general-intent” framing was harmless because the duress proffer failed on the elements.