United States v. Rivera-Sillas ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50244
Plaintiff-Appellee, D.C. No.
v. CR-02-01910-IEG
JOSE LUIS RIVERA-SILLAS, ORDER
Defendant-Appellant. AMENDING
 OPINION AND
DENYING
PETITION FOR
REHEARING AND
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
June 9, 2004—Pasadena, California
Filed July 15, 2004
Amended July 29, 2005
Before: Thomas G. Nelson, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Thomas G. Nelson
8671
8674 UNITED STATES v. RIVERA-SILLAS
COUNSEL
Steven Barth, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Carol C. Lam, United States Attorney, Joseph H. Huynh,
Assistant United States Attorney, United States Attorney’s
Office, San Diego, California, for the plaintiff-appellee.
ORDER
Our opinion filed on July 15, 2004, and published at 376
F.3d 887, is AMENDED as follows:
We withdraw the content of the paragraph on page 893
beginning with “Rivera-Sillas contends that if the Govern-
ment need not prove that a defendant has knowledge of his
presence in the United States, . . .” and substitute the follow-
ing paragraph in its place:
Rivera-Sillas contends that if the Government need
UNITED STATES v. RIVERA-SILLAS 8675
not prove that a defendant has knowledge of his
presence in the United States, a person may be crimi-
nally convicted for inadvertently wandering into this
country. We addressed this potential problem in
dicta in United States v. Quintana-Torres.28 In that
case, we concluded that there are multiple possibili-
ties of unknowing and/or involuntary entry into the
United States.29 Because involuntary presence in the
United States is the rare exception and not the rule,
however, we allow an inference of voluntariness
where the defendant has raised no evidence to the con-
trary.30 Rivera-Sillas’s argument therefore bears no
weight.
The order, filed September 3, 2004, staying the decision of
Appellant’s petition for rehearing and petition for rehearing
en banc is lifted.
The panel now votes to deny the petition for panel rehear-
ing. Judge Fisher votes to deny the petition for rehearing en
banc and Judges T.G. Nelson and Tashima so recommend.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on en banc rehear-
ing. See Fed. R. App. P. 35(f). The petition for panel rehear-
ing and the petition for rehearing en banc are DENIED.
No further petitions for panel rehearing or for rehearing en
banc shall be entertained.
28
235 F.3d at 1200.
29
Id.
30
See id.; see also United States v. Castellanos-Garcia, 270 F.3d 773,
776 (9th Cir. 2001) (citing Quintana-Torres, 235 F.3d at 1200).
8676 UNITED STATES v. RIVERA-SILLAS
OPINION
T.G. NELSON, Circuit Judge:
Jose Luis Rivera-Sillas appeals the district court’s denial of
his motions to dismiss his underlying indictment. We hold
that the district court correctly denied Rivera-Sillas’s motions,
and we affirm.
I. FACTS AND PROCEDURAL HISTORY
Appellant Jose Luis Rivera-Sillas is a citizen of Mexico.
On June 23, 2002, a border patrol agent apprehended Rivera-
Sillas and several other people in the United States near the
Tecate Port of Entry. The border patrol agent identified him-
self to the group, and Rivera-Sillas and his companions admit-
ted that they were citizens of Mexico and did not have legal
documentation to be in the United States. The agent took
Rivera-Sillas to the border patrol center for processing. There,
the IDENT and AFIS fingerprint systems identified Rivera-
Sillas as having been removed from the United States to Mex-
ico six times, the last time on November 30, 2000, via
Nogales, Mexico.
The border patrol agent read Rivera-Sillas his Miranda
rights, and Rivera-Sillas agreed to speak to the agent without
an attorney present. Rivera-Sillas then repeated that he was a
citizen of Mexico and that he was in the United States without
permission. When Rivera-Sillas realized that authorities were
taking him into custody instead of deporting him to Mexico,
he became confrontational and claimed that the border patrol
field officers had beaten him. Authorities took Rivera-Sillas
to an emergency room, where doctors examined and released
him.1 He was then held in custody.
1
A review board of the Office of the Inspector General found that the
agents did nothing wrong.
UNITED STATES v. RIVERA-SILLAS 8677
On July 23, 2002, a grand jury indicted Rivera-Sillas and
charged him with being
an alien, who previously had been excluded,
deported and removed from the United States to
Mexico, was found in the United States, without the
Attorney General of the United States having
expressly consented to the defendant’s reapplication
for admission into the United States; in violation of
Title 8, United States Code, Section 1326.
Rivera-Sillas moved to dismiss the indictment on several
grounds. The district court denied his motion on August 26,
2002. On February 28, 2003, Rivera-Sillas pleaded guilty
under a conditional plea agreement. He retained the right to
appeal to this court the following issues:
[T]he trial court’s pre-trial denials on August 26,
2002 of Defendant’s: (1) motion to dismiss the
indictment for failure to allege “voluntary entry”;
(2) motion to dismiss the indictment for failure to
allege inspection and admission by an immigration
officer or actual and intentional evasion of inspec-
tion; (3) motion to dismiss the indictment for failure
to allege the mens rea element of the charged
offense; (4) motion to dismiss the indictment due to
improper grand jury instructions; and (5) motion to
dismiss the indictment for failure to appoint Defen-
dant counsel at his deportation proceedings.
Rivera-Sillas now appeals, and we consider, the reserved
issues.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
8678 UNITED STATES v. RIVERA-SILLAS
We review the district court’s denial of the motion to dis-
miss the indictment de novo.2
III. LACK OF COUNSEL AT DEPORTATION
HEARING
Rivera-Sillas first argues that the district court should have
dismissed the indictment because the use of his uncounseled
2000 deportation as basis for his sentence violated his Sixth
Amendment rights. His argument fails, and we affirm the dis-
trict court’s refusal to dismiss the indictment on this ground.
Rivera-Sillas argues that Alabama v. Shelton3 dictates that
the district court may not sentence him to imprisonment based
on his underlying, uncounseled deportation. Shelton was con-
victed in Alabama, without the aid of counsel, of misdemea-
nor assault. The trial court sentenced him to a thirty-day jail
term, but immediately suspended the sentence. The Alabama
Court of Criminal Appeals affirmed. The Alabama Supreme
Court affirmed Shelton’s conviction, but invalidated the jail
term, holding that a defendant may not be “sentenced to a
term of imprisonment absent provision of counsel.”4 The
United States Supreme Court agreed, stating that “Shelton is
entitled to appointed counsel at the critical stage when his
guilt or innocence of the charged crime is decided and his vul-
nerability to imprisonment is determined. . . .”5
[1] Rivera-Sillas argues that his situation mirrors Shelton’s,
as he lacked counsel during the hearing underlying his 2000
deportation, and that deportation is now being used as a basis
for imprisonment. This argument is without merit. The Ala-
bama and United States Supreme Courts invalidated Shelton’s
sentence because he was entitled to counsel at his underlying
2
United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir. 2004).
3
535 U.S. 654 (2002).
4
Id. at 659 (internal quotation marks omitted).
5
Id. at 674.
UNITED STATES v. RIVERA-SILLAS 8679
criminal proceeding. In contrast, the law does not entitle
aliens to counsel at deportation hearings. A deportation pro-
ceeding is administrative in nature and is not accompanied by
a right to counsel.6 That the resultant deportation might be
used against him in a later, unrelated criminal prosecution
does not create a right to counsel. Thus, the fact that Rivera-
Sillas had no counsel at his underlying deportation hearing
creates no constitutional problem. We affirm Rivera-Sillas’s
§ 1326 conviction and sentence for being found in the United
States after being deported.
Moreover, Rivera-Sillas is not now in prison for the under-
lying deportation. He is in prison because the court found him
guilty of the crime of being found in the United States after
having been deported. A defendant need not have had counsel
at his underlying deportation hearing in order to be convicted
and sentenced under 8 U.S.C. § 1326. Accordingly, we affirm
the district court.
IV. VOLUNTARY ENTRY
Rivera-Sillas next argues that voluntary entry is an essential
element of a § 1326 offense. According to Rivera-Sillas, the
Government’s failure to charge that his entry was voluntary
was a failure to state an offense under the statute. Thus, he
contends that the district court should have dismissed the
indictment because it did not specifically state that he volun-
tarily entered the United States. Rivera-Sillas’s argument
fails. The grand jury indicted Rivera-Sillas under the “found
in” clause of § 1326.7 That clause does not require the indict-
ment to specifically state that the defendant alien voluntarily
entered the United States. We affirm the district court’s
refusal to dismiss the indictment on this ground.
6
See United States v. Lara-Aceves, 183 F.3d 1007, 1012 (9th Cir. 1999),
overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d
905 (9th Cir. 2001) (en banc).
7
See 8 U.S.C. § 1326(a)(2).
8680 UNITED STATES v. RIVERA-SILLAS
[2] We recognized in United States v. Pacheco-Medina8
that § 1326 delineates three distinct offenses for a deported
alien: to “enter,” to “attempt to enter,” and to be “found in”
the United States without permission.9 To “enter” and to be
“found in” are two separate offenses. Therefore, the Govern-
ment’s failure to charge one did not render the charging of the
other incomplete. “[W]e have never suggested that the crime
of ‘entry’ must be charged in order to charge the crime of
being ‘found in.’ ”10 The Government does not need to charge
or prove voluntary entry in a § 1326 “found in” offense;
indeed we have definitively said that “[v]oluntary entry need
not be expressly pled in an indictment for a violation of 8
U.S.C. § 1326.”11 As we stated in United States v. Parga-
Rosas, “[a]lleging that the defendant is a deported alien subse-
quently found in the United States without permission suf-
fices”12 for a § 1326 “found in” indictment.
United States v. Buckland13 did not alter the state of § 1326
jurisprudence. In Buckland, we considered penalty provisions
of a federal drug statute. Because the drug quantity the defen-
dant possessed affected the defendant’s period of imprison-
ment, we found drug quantity a material fact which the
Government had to charge and prove.14 In contrast, voluntary
entry in a “found in” offense has no effect on a defendant’s
sentence. It is thus not a material fact under Buckland and it
need not be charged. As we recently stated in United States
v. Rodriguez-Rodriguez,15 “[b]ecause it is not necessary to
prove or allege voluntary or unlawful entry in a ‘found in’
8
212 F.3d 1162 (9th Cir. 2000).
9
Id. at 1165.
10
United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001).
11
United States v. San Juan-Cruz, 314 F.3d 384, 390 (9th Cir. 2002).
12
Parga-Rosas, 238 F.3d at 1213.
13
289 F.3d 558 (9th Cir. 2002) (en banc).
14
Id. at 568.
15
364 F.3d 1142 (9th Cir. 2004).
UNITED STATES v. RIVERA-SILLAS 8681
conviction, and because voluntary entry makes no difference
in a defendant’s exposure to penalties, Buckland in no way
overrules Parga-Rosas.”16
[3] Rivera-Sillas’s indictment properly charged him with
being a previously deported alien who was found in the
United States without the permission of the Attorney General.
Because the indictment charged a “found in” offense, it did
not have to charge voluntary entry. We therefore affirm the
district court.
V. PROOF OF INSPECTION AND ADMISSION
Rivera-Sillas contends that the district court should have
dismissed the indictment for failure to charge (a) inspection
and admission by an immigration officer or (b) actual and
intentional evasion of inspection at the inspection point near-
est to where he was apprehended. Rivera-Sillas’s argument
lacks merit. We affirm the district court.
[4] Rivera-Sillas argues that this court’s holding in
Pacheco-Medina17 mandates that the Government charge all
elements of the definition of “entry” developed by the Board
of Immigration Appeals in Matter of Pierre.18 Matter of
Pierre defined “entry” as involving:
(1) a crossing into the territorial limits of the United
States, i.e. physical presence; plus (2) inspection and
admission by an immigration officer; or (3) actual
and intentional evasion of inspection at the nearest
inspection point; coupled with (4) freedom from
restraint.19
16
Id. at 1146.
17
212 F.3d at 1164.
18
Matter of Pierre, 14 I. & N. Dec. 467, 468 (B.I.A. 1973).
19
Id. (internal citations omitted).
8682 UNITED STATES v. RIVERA-SILLAS
Pacheco-Medina, however, did not require the Government to
charge all the elements of entry. It held that an illegal entrant
to the United States must be free from official restraint in
order for the court to find that the alien illegally entered this
country.20 Thus, it merely addressed the fourth element.
[5] As discussed above, Pacheco-Medina stated that § 1326
delineates three distinct offenses for a deported alien: to
“enter,” to “attempt to enter,” and to be “found in” the United
States without permission.21 Parga-Rosas recognized these
three distinct offenses and stated:
[W]e have never suggested that the crime of “entry”
must be charged in order to charge the crime of
being “found in.” Nor did we mean to prescribe a
new rule for pleading when we said in Pacheco-
Medina that “an entry, as defined legally, is required
before a person is ‘found in’ the United States.”22
Thus, Parga-Rosas clarified the very language from Pacheco-
Medina on which Rivera-Sillas relies. The Government need
not plead and prove entry in order to charge or convict an
alien with a § 1326 “found in” crime. The district court was
correct in denying dismissal of the indictment on this ground,
and we affirm.
VI. MENS REA
Rivera-Sillas next argues that the district court should have
dismissed the indictment because it did not charge a mens rea
element: general intent. He contends that the indictment had
to charge him with knowing that he was in the United States.
Rivera-Sillas’s argument fails, and we affirm the district
court.
20
See Pacheco-Medina, 212 F.3d at 1163-64.
21
Id. at 1165.
22
Parga-Rosas, 238 F.3d at 1213 (citation omitted).
UNITED STATES v. RIVERA-SILLAS 8683
[6] Section 1326 does not specify mens rea. This does not
mean, however, that § 1326 violation is a status or strict lia-
bility offense; it is not.23 A “found in” offense under § 1326
is a general intent crime.24 General intent crimes concern, in
the words of the Fifth Circuit, “willful and knowing acts.”25
We are comfortable presuming that a defendant who is found
in the United States willfully and knowingly acted in order to
enter this country.26 Therefore, “ ‘[a]lleging that the defendant
is a deported alien subsequently found in the United States
without permission suffices [to allege general intent].’ ”27
[7] Rivera-Sillas contends that if the Government need not
prove that a defendant has knowledge of his presence in the
United States, a person may be criminally convicted for inad-
vertently wandering into this country. We addressed this
potential problem in dicta in United States v. Quintana-Torres.28
In that case, we concluded that there are multiple possibilities
of unknowing and/or involuntary entry into the United States.29
23
See United States v. Pina-Jaime, 332 F.3d 609, 613 (9th Cir. 2003)
(requiring the Government to prove an unlawful act in order to convict an
alien of being found in the United States); United States v. Ayala, 35 F.3d
423, 425-26 (9th Cir. 1994) (holding that a § 1326 violation is not a status
crime).
24
See Pina-Jaime, 332 F.3d at 613 (citing Pena-Cabanillas v. United
States, 394 F.2d 785, 790 (9th Cir. 1968) (requiring general intent)). In
contrast, an “attempt to enter” offense under § 1326 is a specific intent
crime. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195-96
(9th Cir. 2000) (en banc). Thus, the Government must charge mens rea in
§ 1326 “attempt to enter” indictments.
25
United States v. Berrios-Centeno, 250 F.3d 294, 299 (5th Cir. 2001).
26
See United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.
2000) (stating that absent proof otherwise, a juror may infer the defendant
intended to be in the United States if the defendant is found within this
country).
27
Berrios-Centeno, 250 F.3d at 299 (quoting Parga-Rosas, 238 F.3d at
1213) (alterations in original).
28
235 F.3d at 1200.
29
Id.8684 UNITED STATES v. RIVERA-SILLAS
Because involuntary presence in the United States is the rare
exception and not the rule, however, we allow an inference of
voluntariness where the defendant has raised no evidence to
the contrary.30 Rivera-Sillas’s argument therefore bears no
weight.
[8] We hold, consistent with this court’s prior rulings and
that of the Fifth Circuit, that general intent of the defendant
to reenter the United States may be inferred from the fact that
the defendant was previously deported and was subsequently
found in the United States. Thus, because Rivera-Sillas’s
indictment did allege “that he was deported, removed, and
subsequently present without consent of the Attorney Gener-
al,” it “fairly conveyed that [his] presence was a voluntary act.”31
We therefore affirm the district court.
VII. GRAND JURY INSTRUCTIONS
Rivera-Sillas argues that the district court’s charge to the
grand jury improperly circumscribed the subject matter of the
grand jury’s inquiries and deliberations, and that the charge
therefore runs contrary to the history of the grand jury institu-
tion. His argument fails.
[9] The district court’s instructions to the grand jury fol-
lowed the model charge recommended by the Administrative
Office of the United States Courts. The specific portion of the
instruction at issue stated:
You cannot judge the wisdom of the criminal laws
enacted by Congress, that is, whether or not there
should or should not be a federal law designating
certain activity as criminal. That is to be determined
by Congress and not by you. Furthermore, when
30
See id.; see also United States v. Castellanos-Garcia, 270 F.3d 773,
776 (9th Cir. 2001) (citing Quintana-Torres, 235 F.3d at 1200).
31
Berrios-Centeno, 250 F.3d at 299-300.
UNITED STATES v. RIVERA-SILLAS 8685
deciding whether or not to indict, you should not be
concerned about punishment in the event of convic-
tion. Judges alone determine punishment.
This court has expressly approved identical grand jury
instructions three times in three separate cases.32
In United States v. Marcucci, we examined the same issue
that Rivera-Sillas now raises, “that the charge did not tell the
grand jury that it could refuse to indict [ ] even if there was
probable cause to support an indictment.”33 We held that the
charge was “consistent with the historical function of the
grand jury—protecting citizens from unfounded accusations
not supported by probable cause.”34 We concluded that the
charge was constitutional and without error.35
In United States v. Adams, we followed Marcucci and held
that the challenged instruction does “not misstate the constitu-
tional role and function of the grand jury.”36 Most recently, in
United States v. Navarro-Vargas we reviewed the questioned
grand jury charge in light of Marcucci and Adams. We found
that “[t]he Adams court read Marcucci broadly as holding that
the model charge did not impermissibly infringe on the grand
jury’s independent exercise of its discretion [and that e]ven if
we might be disposed to adopt a narrower interpretation of
Marcucci, we are not now free to do so in light of Adams.”37
We then held the grand jury charge constitutional and refused
to dismiss the indictment on the basis of the grand jury charge.38
32
See United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir.
2004); United States v. Adams, 343 F.3d 1024, 1027 n.1 (9th Cir. 2003),
United States v. Marcucci, 299 F.3d 1156, 1164 (9th Cir. 2002) (per
curiam).
33
Marcucci, 299 F.3d at 1159.
34
Id. at 1164.
35
Id.36
343 F.3d at 1027, n.1.
37
Navarro-Vargas, 367 F.3d at 898.
38
Id.8686 UNITED STATES v. RIVERA-SILLAS
Clear precedent controls this issue, and we therefore affirm
the district court.
VIII. CONCLUSION
[10] The district court did not err when it denied Rivera-
Sillas’s motion to dismiss the indictment. The decision of the
district court is therefore
AFFIRMED.