United States v. Carpena: Duress in § 1326 “Found In” Cases Requires Proof of No Reasonable Escape and Prompt Bona Fide Surrender

I. Introduction

In United States v. Carpena (10th Cir. Apr. 21, 2026), the Tenth Circuit addressed when a defendant charged with Unlawful Reentry of a Removed Alien under 8 U.S.C. § 1326 is entitled to a duress jury instruction. The defendant, Fabian Cobos Carpena, alleged he was coerced into entering and remaining in the United States through years of violence, sexual abuse, and threats by an American citizen (Rosanna Miranda Torres) and associated armed men. He sought to present duress at trial, but the district court denied a duress instruction and granted the government’s motion in limine barring the defense.

The central issues on appeal were:

  • How the continuing-offense nature of § 1326 (“enters, attempts to enter, or is at any time found in” the United States) shapes the duress inquiry.
  • Whether Mr. Cobos Carpena proffered enough evidence—viewed in the light most favorable to him—to allow a jury to find duress by a preponderance of the evidence, particularly the requirement of no reasonable opportunity to escape and (for continuing offenses) a bona fide effort to surrender once coercion dissipates.

The Tenth Circuit affirmed, holding the proffer failed on the third duress element: the record reflected multiple reasonable escape opportunities over years and, even after an asserted “escape” in April 2023, he waited too long to take steps amounting to surrender.

II. Summary of the Opinion

The court reaffirmed that § 1326 unlawful reentry is a continuing offense and that duress requires proof of three elements: (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.

The court concluded that—even crediting the defendant’s account of long-term abuse—he failed to produce sufficient evidence on the third element to warrant a duress instruction. Specifically:

  • From 2013 to April 2023, the proffer reflected episodes of separation from the alleged coercer, contact with family, and access to money/transport, which created reasonable escape opportunities.
  • After April 30, 2023 (the asserted escape), he did not make a prompt bona fide effort to surrender; he waited more than three weeks before disclosing immigration status in a protective-order filing and did not show he was prevented from contacting law enforcement earlier.

Because the evidence was “lacking as to” an essential duress element, the district court could deny the instruction as a matter of law, and it did not abuse its discretion in doing so.

III. Analysis

A. Precedents Cited

The opinion is best understood as a synthesis and application of well-developed duress doctrine in the Tenth Circuit, with particular emphasis on continuing offenses and the “earliest possible opportunity” requirement.

1. Evidence Standard for Getting a Duress Instruction

  • United States v. Dixon, 901 F.3d 1170 (10th Cir. 2018): The court relied on Dixon for the rule that a defendant must present sufficient evidence for a jury to find each duress element by a preponderance, and that the court reviews the proffer in the light most favorable to the defendant.
    Carpena also echoed Dixon’s framing that where a defendant “could have done any number of things” but does not show why lawful alternatives were unavailable, the duress proffer fails.
  • United States v. Yazzie, 188 F.3d 1178 (10th Cir. 1999): Cited for the instruction-stage posture that the court must give full credence to the defendant’s testimony when determining whether the evidence warrants the instruction.
  • United States v. Scott, 901 F.2d 871 (10th Cir. 1990): Quoted for the principle that if evidence is lacking as to any duress element, the district court may disallow the defense as a matter of law and refuse the instruction. Scott also provided language distinguishing scenarios involving “constant surveillance” that could eliminate escape opportunities.

2. Duress Elements and Burden

  • Dixon v. United States, 548 U.S. 1 (2006): Cited for the general proposition that duress “excuses otherwise unlawful conduct” when the defendant is forced to commit the crime.
  • United States v. Arias-Quijada, 926 F.3d 1257 (10th Cir. 2019): Supplied the three-element duress formulation (quoting Portillo-Vega) and the abuse-of-discretion standard of review for denial of a duress instruction.
  • United States v. Portillo-Vega, 478 F.3d 1194 (10th Cir. 2007): A central anchor case. It was used for both the duress-element statement and for the “continuing offense” characterization of illegal reentry that extends the surrender/escape inquiry across the entire period of unlawful presence.

3. “No Reasonable Opportunity to Escape” and the Duty to Use Lawful Alternatives

  • United States v. Bailey, 444 U.S. 394 (1980): Provided the foundational rule that duress fails if there was “a reasonable, legal alternative” and the requirement that a defendant take the “earliest possible opportunity” to escape and comply with the law. This concept becomes decisive for continuing offenses because the defendant must act once coercion loses force.
  • United States v. Al-Rekabi, 454 F.3d 1113 (10th Cir. 2006): Reinforced that defendants must “exhaust legal alternatives” and, for continuing offenses, must proffer evidence of a bona fide effort to surrender as soon as duress loses coercive force.
  • United States v. Glass, 128 F.3d 1398 (10th Cir. 1997): Emphasized that even brief periods away from the threatening person can constitute an opportunity to escape. In Carpena, the court treated the defendant’s episodic separation and errands as more substantial than the windows in Glass.
  • United States v. Beckstrom, 647 F.3d 1012 (10th Cir. 2011): Supported the proposition that the ability to contact law enforcement “will generally constitute a reasonable alternative” to illegal activity, and that a defendant must explain what prevented police contact during the relevant time period.
  • United States v. Meraz-Valeta, 26 F.3d 992 (10th Cir. 1994), overruled in part on other grounds by, United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004) (en banc): Cited for the point that contacting police or family may be a reasonable legal alternative, illustrating the Tenth Circuit’s consistent skepticism of duress proffers that do not show why such options were truly unavailable.

4. Timeliness of Surrender After Coercion Dissipates

  • United States v. Butler, 485 F.3d 569 (10th Cir. 2007): Used for the rule that waiting even “two to four days” after danger dissipates can defeat the defense, underscoring the strictness of the “earliest possible opportunity” requirement.
  • United States v. Zaragoza-Moreira, 780 F.3d 971 (9th Cir. 2015): Cited (persuasively) for the principle that to satisfy the third element, a defendant must show evidence of submitting to authorities at the first reasonable opportunity.

5. Appellate Review and Instructional Error Framework

  • Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281 (10th Cir. 2005): Cited for the abuse-of-discretion formulation: reversal only if the ruling rests on an erroneous legal view or clearly erroneous assessment of evidence.
  • United States v. Gutierrez-Gonzalez, 184 F.3d 1160 (10th Cir. 1999): Quoted for the proposition that whether there is sufficient evidence to constitute a triable issue of the defense is a question of law.
  • United States v. Britt, 79 F.4th 1280 (10th Cir. 2023), and United States v. Ortiz, 804 F.2d 1161 (10th Cir. 1986): Cited for the broader principle that it is reversible error to deny a theory-of-defense instruction supported by sufficient evidence—framing why the sufficiency analysis is the crux of the appeal.

B. Legal Reasoning

1. The Continuing-Offense Lens Drives the Third Element

The court’s reasoning begins with United States v. Portillo-Vega: unlawful reentry is not merely a discrete border-crossing event but a continuing offense that “continues as long as that individual remains in the United States.” This matters because duress in a continuing offense cannot be justified solely by coercion at the moment of entry; the defendant must also account for the continuing unlawful status thereafter.

Thus, even if Mr. Cobos Carpena’s duress evidence was “strongest” at the moment he was allegedly forced back into the U.S. after the 2013 deportation, he still had to proffer evidence that throughout the ensuing years he lacked a reasonable opportunity to escape the coercion and/or that, once the coercion weakened, he made a prompt bona fide effort to surrender.

2. “Opportunity to Escape” Was Found in Real-World Separation, Family Contact, and Resources

The opinion does not deny the severity of the alleged abuse; rather, it treats the duress instruction as turning on a narrower doctrinal question: whether the defendant’s own proffer shows no reasonable alternative to committing and continuing the § 1326 offense.

The court highlighted facts (from the defense’s materials) demonstrating opportunities for escape before April 2023:

  • Running errands and leaving the apartment.
  • Occasional attendance at family events and intermittent family contact.
  • Being dropped off/left outside the home (including in “open fields”) and seeking help from relatives.
  • Having financial resources (e.g., cash) consistent with the ability to travel or seek assistance.
  • Access to a phone and no explained barrier to contacting police when away from the coercer.

On these facts, the panel analogized to United States v. Glass, where even a relatively short interval and unaccompanied travel were deemed sufficient to constitute an escape opportunity. Here, the proffer reflected repeated and more substantial windows.

The court also addressed (and rejected on the record) the argument that “constant surveillance” negated escape opportunities, referencing United States v. Scott to acknowledge that constant surveillance can matter, but concluding the proffer did not establish it.

3. Failure to Act at the “Earliest Possible Opportunity” Defeated the Instruction

Even crediting that April 30, 2023 was a meaningful break from coercion, the court held it still did not satisfy Tenth Circuit requirements because it was not shown to be the earliest possible opportunity to escape. This follows United States v. Bailey and Tenth Circuit applications including United States v. Butler and United States v. Al-Rekabi.

The panel further held that, in any event, the defendant did not show a timely bona fide effort to surrender after coercion dissipated. The court treated the timeline as dispositive:

  • April 30, 2023: defendant escapes.
  • May 22, 2023: first disclosure of immigration status in the protective-order petition.

Under Butler and Al-Rekabi, delays of mere days can be fatal once danger dissipates; the court held a delay of “more than three weeks” was too long absent evidence the defendant was prevented from contacting law enforcement during that interval, relying in part on United States v. Beckstrom.

Notably, the court declined to decide whether a protective-order filing constitutes a bona fide surrender attempt because, even assuming it could, the delay rendered it insufficient on this record.

C. Impact

1. Duress in § 1326 Cases Remains Exceptionally Narrow—Especially for “Found In” Charges

Carpena underscores that duress is not evaluated solely at the point of border crossing; for § 1326 continuing offenses, courts will examine the entire period of unlawful presence. This makes duress difficult to present where a defendant remained in the United States for months or years without contacting authorities, unless the record can show truly continuous coercion with no realistic escape or reporting avenues.

2. Domestic Violence / Trafficking Narratives Must Be Coupled to “No Alternative” Proof

The defendant’s proffer included facts consistent with coercive control, violence, and threats (and referenced a contemplated T-visa process). Nevertheless, the court required a tight doctrinal showing: concrete evidence explaining why family contact, brief separations, money, transport, and phone access did not translate into a reasonable path to safety and lawful compliance. Future litigants asserting duress in similar contexts will likely need:

  • Detailed evidence of surveillance, confinement, communications monitoring, or retaliation mechanisms that make police contact impossible.
  • Evidence explaining why seeking law enforcement help would not reduce risk (or would materially increase it), beyond generalized fear.
  • A clearly documented, prompt attempt to surrender or otherwise submit to authorities once an escape window opens.

3. Timeliness Becomes a Bright-Line Pressure Point

The opinion intensifies the practical importance of timing. By emphasizing that two-to-four-day delays can defeat duress (Butler) and treating three weeks as too long absent proof of continued prevention, Carpena signals that a defendant must be prepared to justify each day of delay once the coercer’s immediate control is broken.

IV. Complex Concepts Simplified

  • Continuing offense (illegal reentry): A crime that is treated as ongoing over time. Under § 1326, unlawful reentry is not only the moment of crossing the border; it continues while the person remains in the U.S. after removal until they are found or leave.
  • Duress defense: A defense that excuses a crime if the defendant acted because of an immediate threat of death or serious injury, reasonably feared the threat would be carried out, and had no reasonable way to escape without committing the crime.
  • “No reasonable opportunity to escape”: If the defendant could safely contact police, flee, or otherwise avoid committing the crime, duress fails—even if the choices were difficult.
  • “Earliest possible opportunity” / “bona fide effort to surrender”: For ongoing crimes, once the coercion weakens, the defendant must act promptly to stop the unlawful conduct and submit to authorities; waiting days (or weeks) can defeat the defense.
  • Preponderance of the evidence: More likely than not. Here, the defendant needed enough evidence that a jury could find each duress element more likely true than not.
  • Motion in limine: A pretrial request to exclude certain evidence or arguments (here, to preclude presenting duress).
  • Conditional guilty plea: A plea that preserves the right to appeal a specific pretrial ruling (here, denial of the duress instruction).

V. Conclusion

United States v. Carpena reaffirms and operationalizes a strict Tenth Circuit approach to duress in § 1326 prosecutions: because unlawful reentry is a continuing offense, a defendant must proffer evidence not only of coercion but also of no reasonable escape opportunity across the relevant period and a prompt bona fide effort to surrender once coercion loses force. The decision’s significance lies less in announcing a new doctrinal test than in its rigorous application of the third element—treating episodic separation, family contact, and the ability to contact police as legally meaningful “alternatives,” and treating delay after escape as fatal absent a concrete showing that reporting was effectively impossible.