United States v. Oscar Garcia-Hernandez ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50190
Plaintiff-Appellee,
v.  D.C. No.
3:07-cr-02383-L-1
OSCAR JAVIER GARCIA-HERNANDEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted February 10, 2009*
Pasadena, California
Filed June 25, 2009
Before: Andrew J. Kleinfeld, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
7995
UNITED STATES v. GARCIA-HERNANDEZ 7999
COUNSEL
Devin J. Burstein, San Diego, California, for the defendant-
appellant.
Aaron B. Clark, San Diego, California, for the plaintiff-
appellee.
OPINION
IKUTA, Circuit Judge:
Oscar Javier Garcia-Hernandez appeals his conviction for
illegal reentry under 18 U.S.C. § 1326, which provides an
enhanced maximum sentence for an alien who was removed
from the United States after being convicted of a felony. Gar-
cia argues that the indictment was legally insufficient to sup-
port his enhanced sentence and that the district court should
have suppressed his post-arrest confession of alienage. We
disagree, and we affirm his conviction.
I
On April 29, 2003, Garcia pleaded guilty to making false
statements to federal officers in violation of 18 U.S.C. § 1001,
a felony. In the course of his plea colloquy, Garcia admitted
that he was a citizen of Mexico and that he had illegally
entered the United States. On June 28, 2007, he was removed
from the United States.
Four days later, at approximately 4 a.m. on July 2, 2007,
Garcia was apprehended by border patrol officers in the
desert, on the United States side of the Calexico port of entry.
He was taken into custody and transported to the El Centro
border patrol station. It was an unusually busy day for the El
Centro station; agents apprehended nearly five times as many
8000 UNITED STATES v. GARCIA-HERNANDEZ
people as they would have on an average day. At approxi-
mately 9 a.m., a border patrol officer ran a records check, and
determined that Garcia had previously been deported. Due to
the number of apprehensions by border patrol officers that
day, Garcia was not administratively processed until around
5 p.m., a process that generally takes several hours. At 6 p.m.,
an officer advised Garcia of his procedural rights under the
immigration regulations. At 11:43 p.m., after reviewing Gar-
cia’s file, a supervisor determined that Garcia was subject to
criminal prosecution. Officers then told Garcia that his admin-
istrative procedural rights no longer applied and informed him
of his Miranda rights. Garcia then admitted to being a citizen
of Mexico. He was arraigned before a magistrate judge the
next day.
On August 29, 2007, a grand jury indicted Garcia for illegal
reentry under 8 U.S.C. § 1326(a) and (b).1 The indictment
alleged:
1
These subsections provide, in relevant part:
(a) In general
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order of
exclusion, deportation, or removal is outstanding, and there-
after
(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 admis-
sion from foreign contiguous territory, the Attorney General
has expressly consented to such alien’s reapplying for admis-
sion; or (B) with respect to an alien previously denied admis-
sion and removed, 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, United States Code, or imprisoned
not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
UNITED STATES v. GARCIA-HERNANDEZ 8001
On or about July 2, 2007, within the Southern Dis-
trict of California, defendant OSCAR JAVIER
GARCIA-HERNANDEZ, an alien, knowingly and
intentionally attempted to enter the United States of
America with the purpose, i.e., conscious desire, to
enter the United States without the express consent
of the Attorney General of the United States or his
designated successor, the Secretary of the Depart-
ment of Homeland Security, after having been previ-
ously excluded, deported and removed from the
United States to Mexico, and not having obtained
said express consent to reapply for admission
thereto; and committed an overt act to wit, crossing
the border from Mexico into the United States, that
was a substantial step toward committing the
offense; all in violation of Title 8, United States
Code, Sections 1326(a) and (b).
It is further alleged that defendant OSCAR
JAVIER GARCIA-HERNANDEZ was removed
from the United States subsequent to April 29, 2003.
Garcia timely moved to dismiss the indictment on the ground
that it failed to allege all the elements of the charged offense.
The district court denied the motion in an oral decision.
Garcia was convicted of violating § 1326 following a bench
trial. In its decision, the district court denied Garcia’s motion
Notwithstanding subsection (a) of this section, in the case of any
alien described in such subsection—
(1) whose removal was subsequent to a conviction for com-
mission of three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony (other than an
aggravated felony), such alien shall be fined under title 18,
United States Code, imprisoned not more than 10 years, or
both.
8002 UNITED STATES v. GARCIA-HERNANDEZ
to suppress the statements he made to the border patrol offi-
cers, holding that they were voluntary and the delay between
Garcia’s arrest and arraignment was reasonable. The district
court also held that the government proved all the elements
required for a violation of § 1326(a) and (b) beyond a reason-
able doubt, including that Garcia had been removed from the
United States after being convicted of a felony and that he had
knowingly reentered after his removal. The district court sen-
tenced Garcia to 12 months in prison and 36 months of super-
vised release. Garcia timely appeals.
II
Garcia makes two arguments on appeal. First, he argues
that the indictment was legally insufficient to support his con-
viction under 8 U.S.C. § 1326(b). Second, Garcia argues that
his statement to border patrol officers, in which he admitted
his alienage, should be suppressed because he was detained
for an unnecessarily long time before being arraigned.
A
[1] We review the sufficiency of an indictment de novo.
See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032
(9th Cir. 2001). “An indictment must set forth each element
of the crime that it charges.” Almendarez-Torres v. United
States, 523 U.S. 224, 228 (1998). Section 1326(a) provides
for up to two years’ imprisonment for an alien who “(1) has
been denied admission, excluded, deported, or removed or has
departed the United States while an order of exclusion, depor-
tation, or removal is outstanding, and thereafter (2) enters,
attempts to enter, or is at any time found in, the United
States,” with exceptions for aliens who reenter with the
express permission of the Attorney General. 8 U.S.C.
§ 1326(a). Section 1326(b) provides for an increased penalty
of up to ten years’ imprisonment for an alien “whose removal
was subsequent to a conviction for . . . a felony.” 8 U.S.C.
§ 1326(b).
UNITED STATES v. GARCIA-HERNANDEZ 8003
[2] Garcia argues that his indictment did not set forth every
element of a violation of § 1326(b) because it did not allege
that his “removal was subsequent to a conviction for . . . a fel-
ony.” Specifically, he argues that “the indictment wholly fails
to allege that the April 29, 2003 date corresponds to a qualify-
ing conviction.” This argument fails. In Almendarez-Torres,
the Supreme Court held that § 1326(b) is a penalty provision
“which simply authorizes a court to increase the sentence for
a recidivist” and does not define a separate crime. 523 U.S.
at 226. For this reason, “neither the statute nor the Constitu-
tion” requires the government to charge the fact of a prior
conviction in the indictment. Id. at 226-27. Instead, the dis-
trict court can find the fact and date of a prior conviction at
sentencing. Id. at 235; United States v. Grisel, 488 F.3d 844,
847 (9th Cir. 2007) (en banc). Accordingly, an indictment is
sufficient to support an enhanced sentence under § 1326(b) if
it contains enough information to allow the district court to
establish at sentencing that the alien’s removal occurred after
the qualifying conviction. See Mendoza-Zaragoza v. Holder,
No. 08-30130, ___ F.3d ___, 2009 WL 1459242, *5 (9th Cir.
May 27, 2009).
[3] This requirement is satisfied here. The indictment stated
that “defendant OSCAR JAVIER GARCIA-HERNANDEZ
was removed from the United States subsequent to April 29,
2003.” The district court determined at sentencing that Garcia
was convicted on April 29, 2003. Because the indictment pro-
vided the information necessary for the district court to con-
clude that Garcia was removed after the date of his
conviction, it is sufficient to support Garcia’s conviction
under § 1326(a) and enhanced sentence under § 1326(b).
B
Garcia also argues that his July 2, 2007 post-arrest state-
ments to the border patrol officers regarding his alienage must
be suppressed because they were obtained in violation of his
right to prompt presentment before a magistrate judge.
8004 UNITED STATES v. GARCIA-HERNANDEZ
[4] Our consideration of Garcia’s claim requires us to
review the history of the prompt-presentment requirement,
which the Supreme Court recently addressed in Corley v.
United States, 129 S. Ct. 1558 (2009). As explained in Cor-
ley, the obligation of an officer to present an arrestee before
a magistrate judge without unreasonable delay was a common
law right that was subsequently codified in a number of fed-
eral statutes. See 129 S. Ct. at 1562. In the exercise of its
“[j]udicial supervision of the administration of criminal jus-
tice in the federal courts,” the Supreme Court held in McNabb
v. United States, 318 U.S. 332, 340 (1943), that federal courts
should enforce this prompt-presentment requirement by sup-
pressing a defendant’s confession if it was made “after an
unreasonable delay in bringing him before a judge.” Corley,
129 S. Ct. at 1562. The McNabb Court explained that such a
“procedural requirement checks resort to those reprehensible
practices known as the ‘third degree,’ which, though univer-
sally rejected as indefensible, still find their way into use.”
McNabb, 318 U.S. at 344.2
[5] Three years after McNabb, Rule 5(a) of the Federal
Rules of Criminal Procedure was promulgated to pull “the
several statutory presentment provisions together in one
place.” Corley, 129 S. Ct. at 1562-3. At that time, Rule 5(a)
required:
An officer making an arrest under a warrant issued
upon a complaint or any person making an arrest
without a warrant shall take the arrested person with-
out unnecessary delay before the nearest available
commissioner or before any other nearby officer
empowered to commit persons charged with offenses
against the laws of the United States.
2
The “third degree” refers to the “process of extracting a confession or
information from a suspect or prisoner by prolonged questioning, the use
of threats, or physical torture.” Black’s Law Dictionary 1518 (8th ed.
2004).
UNITED STATES v. GARCIA-HERNANDEZ 8005
Mallory v. United States, 354 U.S. 449, 451-52 (1957) (quot-
ing Fed. R. Crim. Proc. 5(a) (1946)). Applying Rule 5(a), the
Supreme Court held that a confession which had been made
seven hours after arrest was inadmissible due to unnecessary
delay. Mallory, 354 U.S. at 453. “Thus the rule known simply
as McNabb-Mallory ‘generally render[s] inadmissible confes-
sions made during periods of detention that violat[e] the
prompt presentment requirement of Rule 5(a).’ ” Corley, 129
S. Ct. at 1563 (quoting United States v. Alvarez-Sanchez, 511
U.S. 350, 354 (1994)).3
[6] In 1968, Congress modified the McNabb-Mallory rule
by enacting 18 U.S.C. § 3501(c). See Corley, 129 S. Ct. at1563—64. Section 3501(c) provides that a court may not sup-
press a confession made during a six-hour safe-harbor period
solely due to delay in presentment if the confession was made
voluntarily and if the weight to be given the confession is left
to the jury. 18 U.S.C. § 3501(c).4 The statute also provides for
an extension of the six-hour time limit “in any case in which
3
Although Rule 5(a) has been amended since Mallory was decided, the
relevant language for purposes of the prompt-presentment requirement is
the same: Rule 5 still requires federal officers to present or arraign defen-
dants before a judge “without unnecessary delay.” Fed. R. Crim. Proc.
5(a)(1)(A).
4
Section 3501(c) states, in pertinent part:
In any criminal prosecution by the United States or by the Dis-
trict of Columbia, a confession made or given by a person who
is a defendant therein, while such person was under arrest or
other detention in the custody of any law-enforcement officer or
law-enforcement agency, shall not be inadmissible solely because
of delay in bringing such person before a magistrate judge or
other officer empowered to commit persons charged with
offenses against the laws of the United States or of the District
of Columbia if such confession is found by the trial judge to have
been made voluntarily and if the weight to be given the confes-
sion is left to the jury and if such confession was made or given
by such person within six hours immediately following his arrest
or other detention . . . .
18 U.S.C. § 3501(c).
8006 UNITED STATES v. GARCIA-HERNANDEZ
the delay in bringing such person before such magistrate
judge or other officer beyond such six-hour period is found by
the trial judge to be reasonable considering the means of
transportation and the distance to be traveled to the nearest
available such magistrate judge or other officer.” Id.In Corley, the Supreme Court held that § 3501(c) did not
supplant the McNabb-Mallory rule, but rather modified the
rule to “provide immunization to voluntary confessions given
within six hours of a suspect’s arrest.” 129 S. Ct. at 1564. As
we have explained, the “clear effect of [§ 3501(c)] is to create
a six-hour ‘safe harbor’ during which a confession will not be
excludable solely because of delay.” United States v. Van
Poyck, 77 F.3d 285, 288 (9th Cir. 1996) (internal alterations
omitted); accord United States v. Mitchell, 502 F.3d 931, 961
n.4 (9th Cir. 2007).
[7] In light of its interpretation of § 3501(c), the Supreme
Court set forth a two-part test for assessing potential viola-
tions of the prompt-presentment requirement:
[A] district court with a suppression claim must find
whether the defendant confessed within six hours of
arrest (unless a longer delay was “reasonable consid-
ering the means of transportation and the distance to
be traveled to the nearest available magistrate”). [1]
If the confession came within that period, it is admis-
sible, subject to the other Rules of Evidence, so long
as it was “made voluntarily and the weight to be
given it is left to the jury.” [2] If the confession
occurred before presentment and beyond six hours,
however, the court must decide whether delaying
that long was unreasonable or unnecessary under the
McNabb-Mallory cases, and if it was, the confession
is to be suppressed.
Corley, 129 S. Ct. at 1571 (alterations and citations omitted).
UNITED STATES v. GARCIA-HERNANDEZ 8007
Applying this two-part test to the facts of this case, we first
conclude that Garcia’s confession of alienage falls outside the
§ 3501(c) safe harbor. There is no dispute that Garcia made
his confession more than six hours after he was arrested. Nor
is the extension of the six-hour time limit under § 3501(c)
applicable here, because the district court did not find the
delay “to be reasonable considering the means of transporta-
tion and the distance to be traveled to the nearest available
such magistrate judge or other officer.” 18 U.S.C. § 3501(c).
Because the § 3501(c) safe harbor is inapplicable, we next
consider whether the delay “was unreasonable or unnecessary
under the McNabb-Mallory cases.”5 Corley, 129 S. Ct. 1571.
Garcia urges us to define “unnecessary delay” as delay caused
by “factors beyond the government’s control that necessarily
prevent prompt presentation to a magistrate.” According to
Garcia, a “busy day at the border patrol station,” the cause of
the delay in his case, is “the epitome of unnecessary delay.”
Thus, Garcia argues, his confession must be suppressed.
[8] We disagree. The Supreme Court has held “that delay
for the purpose of interrogation is the epitome of ‘unnecessary
delay.’ ” Corley, 129 S. Ct. at 1563 (citing Mallory, 354 U.S.
at 455-56) (emphasis added). The McNabb-Mallory rule was
designed to deter police from engaging in lengthy pre-
arraignment detentions for the purpose of further interrogating
a defendant. Accordingly, a delay is unreasonable and unnec-
essary when it is “of a nature to give opportunity for the
extraction of a confession.” Mallory, 354 U.S. at 455. We
have been careful not to overextend McNabb-Mallory’s pro-
phylactic rule in cases where there was a reasonable delay
5
Before Corley was decided, Garcia argued that § 3501(c) required the
suppression of any confession that was made more than six hours after
arraignment and does not otherwise meet the safe-harbor requirements of
§ 3501(c). In supplemental briefing after Corley was issued, Garcia aban-
doned this argument, which is clearly inconsistent with Corley’s two-
prong test for assessing violations of the prompt-presentment requirement.
8008 UNITED STATES v. GARCIA-HERNANDEZ
unrelated to any prolonged interrogation of the arrestee. In
particular, we have held that administrative delays due to the
unavailability of government personnel and judges necessary
to completing the arraignment process are reasonable and nec-
essary and therefore do not violate the prompt-presentment
requirement of Rule 5(a). See, e.g., United States v. Gamez,
301 F.3d 1138, 1143 (9th Cir. 2002) (holding that a day-and-
a-half delay was reasonable due to the unavailability of
Spanish-speaking federal agents); Van Poyck, 77 F.3d at 289(holding that a defendant’s statements “fall[ing] outside
§ 3501(c)’s ‘safe harbor’ ” were nonetheless admissible
because the weekend delay due to the lack of an available
magistrate was “reasonable” under the circumstances).
[9] Here, the district court found the delay in Garcia’s pre-
sentment was caused not by a desire to interrogate Garcia fur-
ther but by a shortage of personnel necessary to process
Garcia and determine whether he should be criminally
charged. See United States v. Garcia-Hernandez, 550 F.
Supp. 2d 1228, 1235 (S.D. Cal. 2008). The district court’s
findings are not clearly erroneous. See United States v.
Padilla-Mendoza, 157 F.3d 730, 732 (9th Cir. 1998) (“We
review a district court’s finding that a pre-arraignment delay
was reasonable for clear error.”). Because we agree with the
district court that the delay in presentment occasioned by the
officers’ heavy caseload was reasonable and necessary under
the circumstances, we conclude that the district court did not
err in denying Garcia’s motion to suppress his confession.6
III
The indictment sufficiently alleged a violation of 8 U.S.C.
6
Because we conclude that Garcia was arraigned “without unnecessary
delay,” Fed. R. Crim. P. 5(a), we need not address Garcia’s argument that
Corley supersedes our cases indicating that a defendant’s statement may
be admitted if admission is supported by “public policy.” See Van Poyck,
77 F.3d at 289.
UNITED STATES v. GARCIA-HERNANDEZ 8009
§ 1326, and Garcia’s confession of alienage was properly
admitted. The judgment of the district court is therefore
AFFIRMED.