United States v. Becerra-Lopez ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-51268
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO ROGELIO BECERRA-LOPEZ, also known as Juan Lopez-Rodriguez,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
Lower Court No. EP-01-CR-758-ALL-DB
_________________________________________________________________
September 23, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Becerra appeals from a 41-month sentence
imposed for his illegal reentry into the United States after having
been previously deported. See 8 U.S.C. § 1326. On appeal, the
only issue he raises that is worthy of discussion is whether the
district court and prosecutor committed plain error, respectively,
*
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should not be published and is not precedent except under the limited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.
in jury instructions and closing argument that omitted the standard
of general intent to commit this crime. Because the errors in
question did not seriously affect the fairness, integrity or public
reputation of judicial proceedings, we affirm.
Since Becerra made no objection to the now-challenged
instructions and argument, we are constrained by the plain error
standard and will not reverse unless there was an error that is
clear or plain; that affects the defendant’s substantial right; and
that seriously affects the fairness, integrity or public reputation
of judicial proceedings. United States v. Vasquez, 216 F.3d 456,
459 (5th Cir. 2000). We will only consider the last prong of the
plain-error test.
Becerra correctly observes that the crime of illegal
reentry is a general intent offense, which requires proof of wilful
and knowing acts. The government must prove that a defendant was
knowingly in the United States after having been previously
deported. United States v. Guzman-El Campo, 236 F.3d 233, 238-39
(5th Cir. 2000), cert. denied, 533 U.S. 953 (2001).
Under the circumstances of this case, the likelihood that
a jury would have accepted Becerra’s defense, i.e. that he didn’t
know he had arrived in the United States, is negligible.
As a citizen of Juarez, Becerra could be presumed
familiar with the bridges running between that city and El Paso.
He crossed the border into the U.S. on a bridge then open only to
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pedestrians and traffic destined for Mexico. He was apprehended
near a “penny booth” at least 100 yards north of the American and
Mexican flags and the bright pavement line in the center of the
bridge that mark the actual boundary. At one point in his
testimony, he admitted he knew the American flag was situated on
the American side of the border.
Undermining the credibility of his alibi, Becerra had
been twice convicted in the recent past of illegal reentry and
deported yet another time. The jury was also informed of his prior
conviction for burglary of a vehicle and his use of two different
names in the past.
It is true that Becerra testified that he was innocently
waiting on the bridge, not knowing that he had crossed the border,
while awaiting his “wife’s” return from shopping in El Paso. The
account of the arresting officer differed significantly from
Becerra’s testimony, as he said that Becerra had already reached a
street in El Paso before turning and attempting to flee back across
the bridge after being spotted by the officials. These differences
might have commanded reversal under a harmless error standard of
review. Where no objection has been made at trial, however, and
where the credibility of Becerra, magnified by his criminal history
and prior immigration violations, is highly suspect, we think it
most unlikely that the jury did not find that he knowingly entered
the United States illegally. The demanding standard for reversal
on plain error has not been met.
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The judgment and sentence are AFFIRMED.
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