United States v. Flores-Peraza ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-60653
UNITED STATES OF AMERICA,Plaintiff-Appellee,
VERSUS
ROBERTO FLORES-PERAZA, Defendant-Appellant,
Appeal from the United States District Court
for the Southern District of Texas
(July 3, 1995)
Before KING and JONES, Circuit Judges, and LAKE,* District Judge.
Sim Lake, District Judge:
Roberto Flores-Peraza appeals the district court's denial of
his motion to dismiss an indictment charging him under 8 U.S.C.
§ 1326(a) on grounds of double jeopardy because of his previous
conviction under 8 U.S.C. § 1325(a). We AFFIRM.
I.
Roberto Flores-Peraza (Flores), a citizen of El Salvador,
entered the United States at Hidalgo, Texas, on May 28, 1994, by
wading across the Rio Grande River. On May 31, 1994, he was
arrested by Border Patrol agents. Flores identified himself to the
*
District Judge, Southern District of Texas, sitting by
designation.
arresting agents as Guadalupe Peraza-Gutierrez and claimed to be a
citizen of Mexico. On June 1, 1994, the government charged Flores
by complaint with the misdemeanor offense of unlawful entry at a
place other than as designated by immigration officers in violation
of 8 U.S.C. § 1325(a). That same day Flores was taken before a
United States Magistrate Judge where he waived counsel, pleaded
guilty, and was sentenced to a ten-dollar cost assessment and a
five-year term of probation with a special condition that he not
return illegally to the United States.
The next day an FBI fingerprint comparison established Flores'
identity as Roberto Flores-Peraza, a Salvadoran national who had
been arrested and deported from the United States in October 1993
and who had not obtained permission of the Attorney General to
reenter the United States. On June 21, 1994, Flores was indicted
for being found in the United States after having been arrested and
deported and without having obtained consent of the Attorney
General to reenter the country in violation of 8 U.S.C. § 1326.
Flores moved to dismiss the indictment because it was barred by the
Fifth Amendment's double jeopardy clause since he had already been
prosecuted and convicted of the lesser included offense of illegal
entry. The district court denied the motion and Flores timely
noticed his appeal.
II.
This court reviews the district court's denial of Flores'
double jeopardy claim de novo. United States v. Cruce, 21 F.3d 70,
74 (5th Cir. 1994); United States v. Singleton, 16 F.3d 1419, 1421
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(5th Cir. 1994); Abney v. United States, 431 U.S. 651, 663-665, 97
S.Ct. 2034, 2042-2043 (1977)(conducting independent review of whole
record regarding petitioner's double jeopardy claim). Whether the
Fifth Amendment's double jeopardy clause bars successive prosecu-
tions for improper entry and reentry of deported alien arising from
the same conduct is a question of first impression in this circuit.
III.
Flores argues that his prosecution for violating 8 U.S.C.
§ 1326(a) is barred by the double jeopardy clause due to his
previous conviction for violating 8 U.S.C. § 1325(a) because the
misdemeanor offense of improperly entering the United States is a
lesser included offense of the felony offense charged under 8
U.S.C. § 1326(a). Citing Blockburger v. United States, 284 U.S.
299, 52 S.Ct. 180 (1932), the government responds that Flores'
prosecution for violating § 1325(a) does not bar prosecution under
§ 1326(a) because the two statutes define separate offenses for
purposes of double jeopardy analysis.
A. Double Jeopardy Analysis
The double jeopardy clause of the Fifth Amendment provides:
"[N]or shall any person be subject for the same offence to be twice
put in jeopardy of life or limb." U.S. Const. amend. V. The
Supreme Court has interpreted the double jeopardy clause to protect
against multiple prosecutions and multiple punishments for the
"same offense." Cruce, 21 F.3d at 72, citing North Carolina v.
Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969). Except for
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a brief period following the Supreme Court's decision in Grady v.
Corbin, 495 U.S. 508, 110 S.Ct. 2084 (1990), the focal point of
double jeopardy analysis has always been the "offense" for which
the defendant was prosecuted and punished -- not the particular
conduct criminalized by that offense.1 See Cruce, 21 F.3d at 72-73
n.3. In Gavieres v. United States, 220 U.S. 338, 345, 31 S.Ct.
421, 423 (1911), the Court held that even though the defendant only
made one statement double jeopardy principles did not preclude a
second prosecution for that statement simply because the same
statement was involved. Similarly, in Blockburger, 284 U.S. at
304, 52 S.Ct. at 182, the Court held that even though the defendant
only made one sale of narcotics double jeopardy principles did not
preclude a second punishment for the same conduct because that
conduct constituted two separate offenses. See Cruce, 21 F.3d at
72-73; Dixon, U.S. at , 113 S.Ct. at 2860.
To determine whether sections 1325(a) and 1326(a) punish the
same offense the court must apply the Blockburger same-elements
test. The Blockburger test requires the court to compare the two
statutes and ask "whether each provision requires proof of an
additional fact which the other does not." 284 U.S. at 304, 52
S.Ct. at 182. Unless each statute requires proof of at least one
1
Grady prohibited "a subsequent prosecution if, to establish
an essential element of an offense charged in that prosecution, the
government will prove conduct that constitutes an offense for which
the defendant has already been prosecuted." 495 U.S. at 510, 110
S.Ct. at 2087. Less than three years later, in United States v.
Dixon, U.S. , , 113 S.Ct. 2849, 2860 (1993), the Court
rejected the "same conduct" test announced in Grady as "wholly
inconsistent with earlier Supreme Court precedent and with the
clear common-law understanding of double jeopardy."
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factual element not also found in the other statute, the statutes
"fail" the Blockburger test and the defendant may not be punished
under both statutes absent "a clear indication of contrary
legislative intent." Whalen v. United States, 445 U.S. 684, 692,
100 S.Ct. 1432, 1438 (1980).
Because neither party disputes that a conviction under
§ 1326(a) requires proof of elements not required by § 1325(a),
resolution of the double jeopardy issue turns on whether conviction
under § 1325(a) requires proof of at least one factual element not
required for conviction under § 1326(a). As the court explained in
Singleton, the question to be decided is not whether Flores' viola-
tion of § 1326(a) included a violation of § 1325(a), but whether
all violations of § 1326(a) necessarily include violations of
§ 1325(a). 16 F.3d at 1422.
B. Elements of § 1326(a) and § 1325(a)
The indictment charges Flores with being "an alien who had
been arrested and deported, and having not obtained the consent of
the Attorney General . . . for admission into the United States,
was thereafter found in the United States at Laredo, Texas" in
violation of 8 U.S.C. § 1326. R. 1. 18 U.S.C. § 1326(a) provides:
(a) . . . any alien who --
(1) has been arrested and deported or excluded and
deported, and thereafter
(2) enters, attempts to enter, or is at any time
found in, the United States, unless (A) prior
to his reembarkation at a place outside the
United States or his application for admission
from foreign contiguous territory, the Attor-
ney General has expressly consented to such
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alien's reapplying for admission; or (B) with
respect to an alien previously excluded and
deported, unless such alien shall establish
that he was not required to obtain such
advance consent under this chapter or any
prior Act,
shall be fined under Title 18, or imprisoned not
more than 2 years, or both.
This court has read § 1326(a) to require proof of four elements to
obtain a conviction: (1) alienage, (2) arrest and deportation,
(3) reentry into or unlawful presence in the United States, and
(4) lack of the Attorney General's consent to reenter. United
States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-1132 (5th Cir.
1993).
The misdemeanor complaint to which Flores pleaded guilty
charged him with improperly entering the United States at a place
other than as designated by immigration officers in violation of
8 U.S.C. § 1325(a). Section 1325 prohibits an alien from entering
or attempting to enter the United States by three means:
Any alien who (1) enters or attempts to enter the
United States at any time or place other than as desig-
nated by immigration officers, or (2) eludes examination
or inspection by immigration officers, or (3) attempts to
enter or obtains entry to the United States by a will-
fully false or misleading representation or the willful
concealment of a material fact, shall, for the first such
commission of any such offense, be fined under Title 18
or imprisoned not more than 6 months, or both, and for a
subsequent commission of any such offense, be fined under
Title 18, or imprisoned not more than 2 years, or both.
C. Discussion
The district court found that the two charges against Flores
pass the Blockburger same-elements test:
Each offense requires proof of a fact that the other does
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not. For example, § 1326 requires the Government to
prove that the defendant has previously been officially
deported from this country, an element not found in
§ 1325. On the other hand, § 1325 -- at least the
subpart under which this Defendant was prosecuted --
required the Government to prove that the Defendant
entered the United States at a place other than one
designated by immigration officers. Section 1326
requires no such proof. For that matter, § 1326 does not
require the Government to prove that a defendant entered
the country by eluding examination or inspection of
immigration officers or by making a false statement. To
repeat, a defendant violating § 1326 very likely has
violated at least one of the three prongs of § 1325. The
fact remains, however, that a defendant can nevertheless
be convicted of § 1326 without any showing of precisely
how he entered the country. The government need only
show that he was previously deported, did not thereafter
obtain permission to return, and was then found in the
United States.
R. 20-31.
Flores argues that the district court erred in concluding that
he could be convicted of violating § 1326(a) without any showing of
precisely how he entered the country. To support his argument
Flores cites United States v. Canals-Jimenez, 943 F.2d 1284, 1288
(11th Cir. 1991), for the proposition that the term "found in" as
used in § 1326(a) "applies only to situations in which an alien is
discovered in the United States after entering the country surrep-
titiously by bypassing recognized immigration ports of entry." See
also United States v. DiSantillo, 615 F.2d 128, 135 (3d Cir. 1980).
Flores argues that this showing of surreptitious entry is a
restatement of the particular element of the § 1325(a) offense for
which he was convicted -- entering at a place other than as
designated by immigration officers. Because he has already been
convicted of improper entry under § 1325(a) for his "surreptitious
entry" Flores argues that he cannot be prosecuted again for
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improper reentry under § 1326(a) based on the same surreptitious
entry. Flores argues that the two statutes fail the Blockburger
test because proof of the § 1326(a) violation subsumes proof of the
§ 1325(a) violation, making the § 1325(a) violation a lesser
included offense of the § 1326(a) violation.
We are not persuaded by Flores' argument. A determination
that Flores' § 1325(a) conviction bars his prosecution under
§ 1326(a) because he entered the United States at a time or place
other than as designated by immigration officers, and that such
conduct is subsumed by the definition of "found in" adopted by the
DiSantillo and Canals-Jimenez courts, would be tantamount to apply-
ing the same conduct test recognized in Grady, 495 U.S. at 510, 110
S.Ct. at 2087, but rejected in Dixon, U.S. at , 113 S.Ct. at
2860, instead of the same-elements test required by Blockburger.
To determine whether the double jeopardy clause bars Flores'
successive prosecution under § 1326(a) after having been convicted
under § 1325(a), Blockburger requires the court to focus on the
statutory elements of the offenses defined by § 1325(a) and
§ 1326(a) and not on the application of those elements to the facts
of this specific case. Iannelli v. United States, 420 U.S. 770,
785 n.17, 95 S.Ct. 1284, 1293 n.17 (1975), United States v.
Woodward, 469 U.S. 105, 108, 105 S.Ct. 611, 612 (1985)(per curiam).
The question for the court to determine is not, as Flores argues,
whether his specific violation of § 1326(a) necessarily encompassed
or included his specific violation of § 1325(a), but whether all
violations of § 1326(a) constitute violations of § 1325(a).
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Singleton, 16 F.3d at 1422.
Obviously, an alien "found in" the United States must have
entered the United States. But unlike § 1325(a), which requires
the government to prove how the entry was effected, § 1326(a) only
requires a showing of the mere fact of entry. See United States v.
Ortiz-Villegas, 49 F.3d 1435 (9th Cir. 1995)(rejecting defendant's
contention that he could not be convicted of being "found in" the
United States absent proof of reentry because "[t]he plain language
of the statute does not suggest that surreptitious entry is a pre-
requisite to prosecution for being 'found in' the United States");
United States v. Whittaker, 999 F.2d 38, 41 (2d Cir. 1993)("We thus
reach the question of what section 1326 criminalizes. The Statute
is designed to punish an alien who, following his deportation . . .
and without the permission of the Attorney General, attempts to
reenter or enters or, having reentered remains illegally in the
country until he is found here, i.e., his presence is discov-
ered."); United States v. Crawford, 815 F. Supp. 920, 924 (E.D. Va.
1993), aff'd, 18 F.3d 1173 (4th Cir.), cert. denied, 115 S.Ct. 171(1994)(stating that "the plain language of § 1325(a) defines the
underlying 'offense' in the statute to be improper entry into the
United States based on the manner of entry, not on the mere fact of
an entry").
IV.
Because we conclude that § 1326(a) only requires proof of
entry, while § 1325(a) requires additional proof of how entry was
effected, the order of the district court denying Flores' motion to
dismiss on grounds of double jeopardy is AFFIRMED and this action
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is REMANDED for trial.
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