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United States v. Argueta-Rosales

United States Court of Appeals, Ninth Circuit

April 12, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
OMAR ARGUETA-ROSALES, Defendant-Appellant

         Argued and Submitted: June 3, 2015 Pasadena, California

          Appeal 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, Presiding.

          SUMMARY[**]

         Criminal Law

         The 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.

         The 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.

         The 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.

         Judge 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.

         Doug Keller, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

         Laura 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 Plaintiff-Appellee.

         Before: 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 Bybee.

          OPINION

         Raymond C. Fisher, Circuit Judge:

         At 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.

         I

         Omar 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.

         In 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."

         After 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 the border.

         No cell phone was found on Argueta's person at the time of his arrest, however.

         Argueta 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.

         Border 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."

         About 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 half.
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?
A. Exactly.
Q. What is your destination in the United States, city and state?
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.

         The agents did not follow up on Argueta's claim of persecution.

         Toward 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.)

         In February 2014, Argueta was charged with attempting to reenter the United States, in violation of 8 U.S.C. § 1326(a) and (b).[1] 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 substance-induced psychosis.

         At the 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) (en banc).

         Here, 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."

         The 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."

         Having 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 ...


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