
    UNITED STATES of America, Plaintiff-Appellee v. Rafael Antonio MARIN-PINA, Defendant-Appellant
    No. 16-10609 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed March 15, 2017
    Sean Michael Long, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Lubbock, TX, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee
    Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges
   PER CURIAM:

Rafael Antonio Marin-Pina was convicted by a jury of illegal reentry after a prior deportation and received a within-guidelines sentence of 51 months of imprisonment and a three-year term of supervised release. He raises two issues on appeal: (1) the district court abused its discretion and denied him a complete defense when it declined to take judicial notice of 8 U.S.C. § 1158; and (2) his sentence violated due process, as it exceeded the statutory maximum which was charged in the indictment. We do not address the latter argument, as Marin-Pina correctly concedes that it is foreclosed under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

We “review alleged violations of a defendant’s Sixth Amendment right to present a complete defense de novo ... subject to harmless error review.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008) (italics omitted). “Absent a constitutional violation, [this court] review[s] a district court’s evidentiary decisions .,. for an abuse of discretion, which requires the defendant to show that the district court’s evidentiary rulings were clearly prejudicial.” United States v. Dvorin, 817 F.3d 438, 449 (5th Cir.) (internal quotation marks and citations omitted), cert. denied, — U.S. —, 137 S.Ct. 140, 196 L.Ed.2d 108 (2016). This “review is necessarily heightened in a criminal case,” Dvorin, 817 F.3d at 448, but is also subject to harmless-error analysis, United States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999).

We need not determine whether the district court’s decision not to take judicial notice of § 1158 was an abuse of discretion, because any error was harmless. Assuming Marin-Pina would have been excluded from seeking asylum under § 1158 based on his aggravated battery conviction, asylum was far from the only reasonable legal alternative available to him. See United States v. Posada-Rios, 158 F.3d 832, 873-74 (5th Cir. 1998). He could have returned to the Yucatan, where trial testimony indicated that he previously lived without threat to his safety, or he could have pursued other relief in the United States such as -withholding of removal or protection under the Convention Against Torture, notwithstanding the prior conviction. See Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1682 n.1, 185 L.Ed.2d 727 (2013). Moreover, Marin-Pina presented no evidence at trial that he was under a present, impending, unlawful, and imminent threat that “induce[d] a well-grounded apprehension of death or serious bodily injury,” Posada-Rios, 158 F.3d at 873, given that his own testimony was that several weeks passed between the last threat he received in Mexico and when he crossed into the United States, see id. at 874-75.

Because there were a number of legal alternatives available to Marin-Pina and there was no evidence that he was subject to an imminent threat, he could not have demonstrated his affirmative defense even if the district court had taken judicial notice of § 1158. Any error was harmless, therefore, because it did not affect his substantial rights. See Fed. R. Crim. P. 52(a).

AFFIRMED. 
      
      
         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.
     