and Submitted: June 3, 2015 Pasadena, California
from the United States District Court for the Southern
District of California. D.C. Nos. 3:14-cr-00244-LAB-1,
3:10-cr-04572-LAB-1. Larry A. Burns, District Judge,
panel vacated a conviction and sentence for attempted illegal
reentry, and vacated the resulting revocation of probation
and sentence, in a case in which the defendant presented
evidence that he crossed into the United States in a
delusional state, believing he was being chased by Mexican
gangs, and with the specific intent solely to place himself
into the protective custody of United States officials.
panel held that the district court -- which ruled that the
mens rea element of attempted illegal reentry under 8 U.S.C.
§ 1326 requires only that the defendant knew he was
crossing into the United States and that he was not
privileged to do so -- misapplied United States v.
Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005), in
which this court held that because attempted illegal reentry
is a specific intent crime that requires proof of intent to
enter the country free from official restraint, it was
impossible to convict a previously deported alien for
attempted illegal reentry when he crosses the border with the
intent only to be imprisoned.
panel held that the error was not harmless. The panel
clarified that where, as here, there is contradictory
evidence regarding the defendant's intent, it is for the
trier of fact to determine whether the government has proven
unlawful intent beyond a reasonable doubt. The panel also
clarified that the government need not prove that entry free
from official restraint was the defendant's sole
intent. The panel concluded that it is not clear beyond a
reasonable doubt the district court would have found the
defendant guilty absent its misapprehension of the specific
intent element. The panel remanded for proceedings consistent
with this opinion.
Bybee concurred in the judgment and dissented as to
everything else. Because the district court failed to apply
the standard supplied by Lombera-Valdovinos, he
concurred in the judgment vacating the conviction and
remanding for retrial. He wrote that he is convinced,
however, that Lombera-Valdovinos was wrongly decided
and that our understanding of when an alien is " free
from official restraint" has reached an absurd position.
Keller, Federal Defenders of San Diego, Inc., San Diego,
California, for Defendant-Appellant.
E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and Francis A. DiGiacco (argued),
Assistant United States Attorney, San Diego, California, for
Raymond C. Fisher and Jay S. Bybee, Circuit Judges, and
Elizabeth E. Foote, District Judge.[*] Opinion by Judge
Fisher; Partial Concurrence and Partial Dissent by Judge
C. Fisher, Circuit Judge:
trial on the charge of attempted illegal reentry into the
United States, Omar Argueta-Rosales presented evidence that
he crossed into the United States in a delusional state,
believing he was being chased by Mexican gangs, and with the
specific intent solely to place himself into the protective
custody of United States officials. The district court found
this evidence plausible, but nonetheless found Argueta guilty
of the charged offense, ruling the mens rea element of
attempted illegal reentry under 8 U.S.C. § 1326 requires
the government to prove only that the defendant knew he was
crossing into the United States and that he was not
privileged to do so. In United States v.
Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005),
however, we held it was " [im]possible to convict a
previously deported alien for attempted illegal reentry into
the United States under 8 U.S.C. § 1326 when he crosses
the border with the intent only to be imprisoned . ..,
because attempted illegal reentry is a specific intent crime
that requires proof of intent to enter the country free from
official restraint." Because the district court found
Argueta guilty under an erroneous legal standard, we vacate
his conviction and remand for a new trial or other
proceedings consistent with this opinion.
Argueta-Rosales was born in Mexico in 1981. When he was five,
his mother migrated to the United States and he was left to
the care of his grandparents in Mexico. He lived with his
grandparents for four years before reuniting with his mother
in Los Angeles, California. He lived with his mother in Los
Angeles until he was 16 years old. An immigration judge
ordered him removed in 2006.
2010, Argueta was apprehended at the border while attempting
to unlawfully return to the United States. In 2011, he pled
guilty to attempting to illegally reenter the United States,
in violation of 8 U.S.C. § 1326, and received a sentence
of five years' probation. A standard term of his
probation provided he " shall not commit another
federal, state, or local crime."
returning to Mexico, Argueta began to abuse methamphetamine.
A few days before the border crossing that is the subject of
this appeal, he was beaten by gang members in Mexico. In the
days that followed, according to Dr. Bruce Yanofsky, the
court-appointed psychologist who testified at trial, Argueta
became " increasingly paranoid, he was worried, he
started to see people that were following him and was really
concerned about his life."
[H]e was living out on the streets, running around until he
got to the point where he felt that his life was in danger
and then obviously . . . proceeded to try to cross the border
with the account that he gave me that he had the cell phone,
that it was a land line -- well, it was connected to a line
in the United States, he was trying to call for help, he was
calling 9-1-1 repeatedly because he wanted law enforcement to
intervene because he had tried the Mexican law enforcement to
help him and they didn't do anything for him. So in this
state of panic, paranoia, and just losing control of what was
going on in his life, fearing for his life, he ended up in
phone was found on Argueta's person at the time of his
crossed the United States border from Mexico, about one and
one-half miles west of the San Ysidro, California, port of
entry, on November 29, 2013. At the border, Argueta climbed
over the approximately 10-foot primary fence, which placed
him in the United States. He was at that point between the
primary fence and the secondary fence, which is approximately
50 yards north of the primary fence and about 20 feet high.
Argueta was spotted by Border Patrol Agent Oscar Alvarado
when Argueta was approximately 15 yards north of the primary
fence. Argueta was walking, at a normal speed, in a north and
westbound direction. Agent Alvarado radioed another officer
to intercept Argueta.
Patrol Agent Jeffrey Schwinn responded. Agent Schwinn
approached in his vehicle to approximately 20 feet away,
exited his vehicle and shouted " Hey" to try to get
Argueta's attention. When Argueta did not respond, Agent
Schwinn approached Argueta. Argueta turned around and looked
at Schwinn, at which point Schwinn asked him in Spanish where
he was born. Argueta said Mexico City. Schwinn asked Argueta
what country he was a citizen of, and he said Mexico, so
Schwinn proceeded to ask him if he had any immigration
documents allowing him to enter the United States, and he
said no. At that point, Argueta began to walk towards
Schwinn, and Schwinn told him to head back south and return
to Mexico. When Argueta did not take that suggestion, Agent
Schwinn told him he was going to place him under arrest, and
Argueta said something to the effect of " you do what
you got to do."
two hours after his arrest, two border patrol agents
interviewed Argueta at the Imperial Beach Border Patrol
Station in San Diego. During the beginning of the interview,
which was conducted in English, Argueta appeared calm and
rational. Early in the interview, Argueta asked to make a
statement, saying " [i]t's important. It relates to
what happened at my house." One of the agents told
Argueta he would be able to make a statement later. At one
point during the interview, one of the agents asked Argueta,
" When did you last enter the United States," and
this discussion followed:
A. Last was five years ago. Five years ago, almost five and a
Q. How did you enter the United States?
A. Trying to go through the line walking.
Q. Through where?
A. I was walking through Calexico, from Mexicali to Calexico.
Q. The port of entry?
Q. What is your destination in the United States, city and
A. Los Angeles, California.
Q. Do you have any . . . fear of persecution or torture
should you be removed from the United States?
A. Yes, I do.
agents did not follow up on Argueta's claim of
the end of the interview, when the agents asked Argueta
whether he wanted to say anything else, Argueta made
apparently delusional statements for two minutes, referring
to people who were in the cell with him even though the only
people there were Argueta and the two border patrol agents:
A. Just that I come -- the people who I'm with right now
in the tank are the people who were at my house.
Q. In here in the cell?
A. (Inaudible.) And also, I wanted to ask you guys if
it's coincidental or (unintelligible). And that's
when one of the (unintelligible) started asking me what's
up. I told them I noticed I recognize the skinny guy, the one
they put at the end. (Unintelligible) the other one with
white shorts (unintelligible). He started taking his hand
out. Before that I told the skinny dude, hey, I know you,
bro. It hurts me, because that's my wife, you know.
But then again, I don't know what's going on. Like I
said, I was going nuts over there. I couldn't remember. I
had to ask my wife. I mean, there's some pictures I seen.
I can't recognize certain people (unintelligible). I was
going through it and not only (unintelligible) that's the
people that are after me. (Unintelligible.)
February 2014, Argueta was charged with attempting to reenter
the United States, in violation of 8 U.S.C. § 1326(a)
and (b). He was separately charged with
violating the terms of his 2011 probation. The district court
appointed Dr. Yanofsky to determine whether Argueta was
competent to stand trial. After Argueta was found competent,
the case proceeded to a bench trial. At trial, Dr. Yanofsky
testified that, on the day Argueta climbed over the border
fence, he was suffering from a substance-induced psychosis
caused by heavy methamphetamine use. According to Dr.
Yanofsky, Argueta was operating under a delusion that
individuals were chasing him and trying to kill him,
prompting him to climb over the border fence. An expert
proffered by the government, Dr. Mark Kalish, disagreed with
Dr. Yanofsky's conclusion that Argueta was suffering from
close of evidence, the parties presented closing arguments to
the district court. The elements of the crime of attempted
illegal reentry under § 1326 are: " (1) the
defendant had the purpose, i.e., conscious desire, to reenter
the United States without the express consent of the Attorney
General; (2) the defendant committed an overt act that was a
substantial step towards reentering without that consent; (3)
the defendant was not a citizen of the United States; (4) the
defendant had previously been lawfully denied admission,
excluded, deported or removed from the United States; and (5)
the Attorney General had not consented to the defendant's
attempted reentry." United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000)
only the first element was in dispute. Relying on United
States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir.
2005), Argueta's counsel argued " the government
cannot prove specific intent beyond a reasonable doubt
because the evidence in this case showed that Mr. Argueta
entered the United States under the psychotic belief that he
was being chased by armed gunmen in Mexico, but he
specifically -- while that may be the motive, he specifically
intended to enter to find protection" by turning himself
in to the border patrol. According to Argueta's counsel,
Argueta was not guilty of the crime of attempted illegal
reentry if the evidence showed that his " specific
intent . . . was to go into custody." Counsel maintained
that, under Lombera-Valdovinos , " if someone
specifically intends to enter the United States to go into
custody, they're affirmatively not guilty under the
attempted reentry charge of [§ ] 1326."
district court rejected Argueta's argument. In the
court's view, the specific intent element of attempted
illegal entry would be satisfied so long as Argueta "
knew he was vaulting the fence into the United States and he
knew that that was wrong." The court rejected the
proposition that Argueta could negate the specific intent
element merely by showing he intended to enter into custody,
disagreeing with Argueta's argument that " the
reason of coming over here to turn yourself in is enough to
defeat conscious purpose." According to the court, if
the defense was " right that the desire to turn yourself
in, even if it's based on a delusion, is enough to defeat
conscious purpose, the appellate court will tell us. I
don't think it is."
rejected Argueta's legal argument, the court proceeded to
find the specific intent element proven beyond a reasonable
doubt because Argueta (1) knew he was crossing into the
United States and (2) knew he did not have permission to do
so, facts Argueta did not dispute. Accordingly, the court
found Argueta guilty of the crime of attempted illegal
reentry. In addition, solely on the basis of that conviction,
the court also found Argueta guilty of violating the terms of
his 2011 probation. The court later sentenced Argueta to 21
months in custody on the attempted illegal reentry conviction
and an additional 12 months in custody on the ...