United States v. Hernandez-Cruz ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL HERNANDEZ-CRUZ, a/k/a
Miguel Hernandez Angel, a/k/a
Miguel Angel Cruz-Hernandez,
a/k/a Carlos Hernandez, a/k/a
Miguel Hernandez, a/k/a Carlos
Carsona, a/k/a Miguel Rios
No. 96-4338
Hernandez, a/k/a Miguel Hernandez
Morales, a/k/a Miguel Cortez, a/k/a
Juan Carlos Delacosta, a/k/a Cesario
Cortes, a/k/a Jose Rodriguez
Munoz, a/k/a Chico Dillas, a/k/a
Miguel Mirales, a/k/a Miguez Rios
Duartes, a/k/a Juan Carlos, a/k/a
Jose Mirales, a/k/a Chico Diaz,
a/k/a Polehe Rodriguez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-466-A)
Argued: January 31, 1997
Decided: March 27, 1997
Before RUSSELL and WILKINS, Circuit Judges, and
HERLONG, United States District Judge for the District of
South Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Gregory Bruce English, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. Brian Patrick Lennon, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Miguel Hernandez-Cruz appeals his conviction for reentering the
United States without permission following deportation, see 8
U.S.C.A. § 1326(a) (West Supp. 1996), arguing that the district court
erred in refusing to permit him to present a good faith defense and
that his prosecution contravened the Due Process Clause of the Fifth
Amendment. We affirm.
I.
The material facts are not in dispute. Hernandez-Cruz has been
deported from the United States to El Salvador on three occasions, the
most recent being December 12, 1989. In 1995, while in police cus-
tody in Arlington County, Virginia, Hernandez-Cruz was arrested by
the United States Immigration and Naturalization Service (INS) and
charged with illegal reentry.
2
At trial, Hernandez-Cruz intended to assert a "good faith" defense
based on his erroneous belief that his mother had obtained permission
for him to reenter the United States. After concluding its case, the
Government moved to exclude this defense. The district court granted
the motion, finding that Hernandez-Cruz was attempting to present a
"mistake of law" defense and that such a defense is not cognizable in
response to a charge of illegal reentry. As a result of the refusal of the
district court to allow this defense, Hernandez-Cruz declined to pres-
ent evidence, waived his right to a jury trial, and consented to a bench
trial. The district court found Hernandez-Cruz guilty of violating 8
U.S.C.A. § 1326(a).
II.
Hernandez-Cruz first contends that the district court erroneously
excluded evidence that he believed in good faith that he had been
granted permission to reenter the United States. 1 We disagree. Unlaw-
ful reentry following deportation is a general intent crime, requiring
only that a deportee voluntarily reenter the United States. See United
States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir. 1989). Thus, the
fact that Hernandez-Cruz may have reentered the United States under
the mistaken belief that he was legally able to do so provides him no
defense. See id. (rejecting alien's argument"that he mistakenly, but
reasonably, believed that he was qualified to return to the United
States").2
Next, Hernandez-Cruz contends that the Government misled him
into believing that he could lawfully reenter the United States. The
INS provided him with a copy of Form I-294 at the time of his depor-
tation. This form provided the following in both Spanish and English:
_________________________________________________________________
1 This belief was based on statements made to Hernandez-Cruz by his
mother. She purportedly sent Hernandez-Cruz a government document
and incorrectly advised him that the document represented his permis-
sion to reenter the United States.
2 Hernandez-Cruz attempts to mitigate the operation of this principle by
contending that the district court misconstrued his argument as a
mistake-of-law defense when, in fact, he was asserting a mistake-of-fact
defense. Regardless of the label applied to his argument, Hernandez-
Cruz's misguided belief that he had permission to reenter this country is
of no assistance.
3
This is a warning. Please read carefully.
It has been ordered that you be deported to El Salvador.
...
Should you wish to return to the United States you must
write this office or the American Consular Office nearest
your residence abroad as to how to obtain permission to
return after deportation. By law (Title 8 of United States
Code, Section 1326) any deported person who within five
years returns without permission is guilty of a felony. If
convicted he may be punished by imprisonment of not more
than two years and/or a fine of not more than $1,000.00.
J.A. 105 (emphasis added). The Government does not dispute that the
five-year period referenced in Form I-294 is not contained in 8
U.S.C.A. § 1326(a). Instead, the statute makes reentry following
deportation illegal if an alien returns at any time without the express
permission of the Attorney General. See 8 U.S.C.A. § 1326(a).
Hernandez-Cruz contends that his conviction offends due process
because Form I-294 misled him into believing that his return to the
United States was permissible if it occurred more than five years after
his deportation. See Raley v. Ohio, 360 U.S. 423, 438 (1959) (holding
that a person may not be convicted "for exercising a privilege which
the State clearly had told him was available to him"). Hernandez-Cruz
did not assert this argument during trial, raising it for the first time
during sentencing. Accordingly, his argument fails unless the refusal
of the district court to dismiss the indictment based on the language
contained in Form I-294 constituted plain error. See United States v.
David, 83 F.3d 638, 641 (4th Cir. 1996). We conclude that it did not.
See United States v. Aquino-Chacon, No. 95-5980, slip op. at 6 (4th
Cir. Mar. 19, 1997).
III.
After carefully reviewing the record and the briefs of counsel, we
conclude that the remaining arguments advanced by Hernandez-Cruz
are without merit. Thus, we affirm the decision of the district court.
AFFIRMED
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