United States v. Carlos-Colmenares

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3632
United States of America,
Plaintiff-Appellee,
v.
Guillermo Carlos-Colmenares,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 328--James F. Holderman, Judge.
Argued April 24, 2001--Decided June 7, 2001
Before Posner, Evans, and Williams, Circuit
Judges.
Posner, Circuit Judge. The defendant
pleaded guilty to the crime of having
been found in the United States, without
the express consent of the Attorney
General to be here, after having been
deported (in his case, twice deported). 8
U.S.C. sec. 1326(a)(2). Because he had
been deported after being convicted of an
aggravated felony, he was subject to a
maximum imprisonment of 20 years rather
than the normal 2 years, see sec.sec.
1326(a), (b)(2), and was in fact
sentenced to 80 months. His appeal, which
is based on United States v. Anton, 683
F.2d 1011 (7th Cir. 1982), complains that
the indictment failed to allege that he
had acted willfully or knowingly in
reentering the United States after his
deportation without permission. Anton
held, over the dissent of one member of
the panel, that a reasonable though
mistaken belief that the defendant had
the consent of the Attorney General to
reenter the country is a defense to a
prosecution under section 1326. This
implies, our defendant argues, that an
intent to reenter the country unlawfully
is an element of the crime; and there is
language in Anton that supports this
interpretation. See 683 F.2d at 1016. The
government disagrees with the
interpretation and in addition urges that
Anton be overruled. We agree that it
should be overruled, which moots the
interpretive issue. Because we are
overruling one of our decisions, we have
circulated our opinion to the full court
for a vote on whether to hear the case en
banc. 7th Cir. R. 40(e). No judge in
regular active service voted to hear the
case en banc; Chief Judge Flaum did not
participate in the consideration of the
matter.
Of the eleven federal circuits besides
the Seventh that have a criminal
jurisdiction, all but the D.C. and Third
Circuits have now spoken to the issue
that divided our court in Anton. Every
one of the other nine circuits has, in
numerous decisions and without so much as
a single dissent, rejected the position
that we took in Anton. See United States
v. Guzman-Ocampo, 236 F.3d 233, 237 (5th
Cir. 2000); United States v. Gutierrez-
Gonzalez, 184 F.3d 1160, 1165 (10th Cir.
1999); United States v. Ortegon-Uvalde,
179 F.3d 956, 959 (5th Cir. 1999); United
States v. Martus, 138 F.3d 95 (2d Cir.
1998) (per curiam); United States v.
Peralt-Reyes, 131 F.3d 956 (11th Cir.
1997) (per curiam); United States v.
Torres-Echavarria, 129 F.3d 692, 697-98
(2d Cir. 1997); United States v.
Gonzalez-Chavez, 122 F.3d 15 (8th Cir.
1997); United States v. Martinez-Morel,
118 F.3d 710, 713-14 (10th Cir. 1997);
United States v. Henry, 111 F.3d 111
(11th Cir. 1997); United States v. Soto,
106 F.3d 1040 (1st Cir. 1997); United
States v. Trevino-Martinez, 86 F.3d 65,
69 (5th Cir. 1996); United States v.
Ortiz-Villegas, 49 F.3d 1435 (9th Cir.
1995); United States v. Leon-Leon, 35
F.3d 1428, 1432-33 (9th Cir. 1994);
United States v. Ayala, 35 F.3d 423, 426
(9th Cir. 1994); United States v.
Champegnie, 925 F.2d 54 (2d Cir. 1991)
(per curiam); United States v. Espinoza-
Leon, 873 F.2d 743 (4th Cir. 1989);
United States v. Miranda-Enriquez, 842
F.2d 1211 (10th Cir. 1988); United States
v. Hernandez, 693 F.2d 996, 1000 (10th
Cir. 1982); United States v. Newton, 677
F.2d 16 (2d Cir. 1982) (per curiam);
United States v. Hussein, 675 F.2d 114,
116 (6th Cir. 1982) (per curiam); Pena-
Cabanillas v. United States, 394 F.2d
785, 789-90 (9th Cir. 1968). Most of
these decisions postdate Anton and thus
had the benefit of our reasoning, yet
were unpersuaded by it. In the interest
of promoting uniformity of federal law,
we have an obligation to reconsider our
now isolated position. "When a number of
other circuits reject a position that we
have taken, and no other circuit accepts
it, the interest in avoiding unnecessary
intercircuit conflicts comes into play;
and if we are asked to reexamine our
position, we can hardly refuse." United
States v. Hill, 48 F.3d 228, 232 (7th
Cir. 1995); see also Critical Mass Energy
Project v. NRC, 975 F.2d 871, 876 (D.C.
Cir. 1992); cf. Colby v. J.C. Penney Co.,
811 F.2d 1119, 1123 (7th Cir. 1987);
International Society for Krishna
Consciousness, Inc. v. Lee, 925 F.2d 576,
580 (2d Cir. 1991). That interest to one
side, the unanimous rejection of our view
by a significant cross-section of our
colleagues around the country is a datum
that can hardly fail to shake our
confidence in the soundness of our
decision.
Upon reexamination, we have concluded
that our colleagues are right and that
intent to reenter the country without the
Attorney General’s express consent is not
an element of section 1326. Intent to
reenter is an element, United States v.
Quintana-Torres, 224 F.3d 1157 (9th Cir.
2000); United States v. Guzman-Ocampo,
supra, 236 F.3d at 237; United States v.
Martinez-Morel, supra, 118 F.3d at 713;
Pena-Cabanillas v. United States, supra,
394 F.2d at 790; United States v. Anton,
supra, 683 F.2d at 1022 (dissenting
opinion)--it is hardly likely that
Congress would have made it a crime to be
transported involuntarily to the United
States, say by an airplane hijacker--but
not intent to reenter without the
requisite permission. An alien who has
been deported reenters this country at
his peril. He had better make certain
that he has the Attorney General’s
express consent to enter, because if he
does not he is guilty of a felony.
Nothing in the statute’s language or
background suggests that an illegally
returning deportee cannot be convicted
unless he knew he lacked the Attorney
General’s express consent to reenter. On
the contrary, the requirement that the
Attorney General’s consent be "express"
is a warning that the alien not try to
infer consent from ambiguous
circumstances. The present defendant
admitted signing a form, prior to his
second deportation, that warned him that
"should you wish to return to the United
States you must write this office [i.e.,
the INS] or the United States Consular
Office nearest your residence abroad as
to how to obtain permission to return
after deportation" and that if he did not
obtain the Attorney General’s express
consent to return he would be punished
under section 1326. It is unclear to us
what room is left for a defendant to
argue plausibly that, while failing to
obtain the Attorney General’s consent, he
had not intended to reenter the country
in violation of the law.
The statute is limited to persons who
have previously been deported from the
United States. They are persons who were
in this country illegally, and obviously
knew it when they were deported.
"[D]eportation itself is sufficient to
impress upon the mind of the deportee
that return is forbidden. No one in that
position could innocently assume that the
INS is a travel agency. The statute
simply, and logically, makes the
presumption of unlawful intent
conclusive." United States v. Torres-
Echavarria, supra, 129 F.3d at 698. The
effect, much as in the case of statutory-
rape laws that do not recognize even a
reasonable mistake concerning the
victim’s age as a defense, see, e.g.,
Garnett v. State, 632 A.2d 797 (Md.
1993); State v. Silva, 491 P.2d 1216
(Haw. 1971) (per curiam), is to make
deported aliens very cautious about
reentering the United States without
permission--in other words, to give them
a strong incentive to steer well clear of
the forbidden zone. The need for so
strict a law is well illustrated by the
present case, in which the alien was
deported, reentered the United States,
was deported a second time, and came back
illegally a second time, all within a
space of eight and a half months. Since
anyone in any country with which we have
diplomatic relations can walk into the
nearest American consulate and get a visa
allowing him to enter the United States
as a visitor, the exclusion of deportees
from returning to this country without
the Attorney General’s express consent
would be porous if the deportee could
escape the clutches of section 1326 by
testifying plausibly that he had thought
the receipt of the visa showed that he
was entitled to come back. Concern that
deported aliens were returning like yo-
yos from the countries to which they had
been deported is a constant theme in the
statutory history that culminated in
section 1326, as explained in the
dissenting opinion in Anton. See 683 F.2d
at 1020-21. Related provisions of the
immigration laws show that Congress knew
very well how to make clear its intention
that the alien be proved to have acted
willfully. See 8 U.S.C. sec.sec. 1287,
1306(a), 1324(a)(1)(A), 1324c(a),
1325(a), 1327; see Pena-Cabanillas v.
United States, supra, 394 F.2d at 789 n.
4. Recognizing in the teeth of the
statute a defense of mistaken belief of
consent to reenter would greatly
complicate the administration of the
national policy of excluding illegal--
especially, previously deported--aliens.
The defendant points out that strict
liability is a disfavored basis for
criminal punishments, e.g., Staples v.
United States, 511 U.S. 600, 606 (1994);
Liparota v. United States, 471 U.S. 419,
426 (1985); Karlin v. Foust, 188 F.3d
446, 475 (7th Cir. 1999); United States
v. Pasillas-Gaytan, 192 F.3d 864, 868
(9th Cir. 1999), and argues that a
statute such as 8 U.S.C. sec. 1326,
which, like a statutory-rape statute,
allows a defendant to be convicted even
if he made a reasonable mistake
concerning an element of the crime,
imposes a form of strict liability. The
argument is imprecise. Liability would be
strict if the returning alien could be
punished even if he had been returned
involuntarily. What is at issue is
whether the government, in addition to
having to prove that the alien was
deported and knowingly returned and did
not have the express consent of the
Attorney General to return, must prove
that he knew he didn’t have that consent,
or, alternatively, whether the alien may
try to prove that he didn’t know. Granted
that there are moral and practical
objections to visiting severe sanctions
on what may be pure accident, the
objections are compelling only with
respect to traditional crimes as distinct
from regulatory offenses. Morisette v.
United States, 342 U.S. 246, 255-56
(1952); United States v. Wilson, 133 F.3d
251, 263 (4th Cir. 1997). By
"traditional" crimes we mean ones that
anyone might be accused of committing,
such as murder or robbery or selling
illegal substances or evading taxes.
People would feel insecure if they
thought they could be sent to prison for
accidental violations, such as failing to
pay taxes they had no reason to know were
due or killing in the reasonable belief
that it was self-defense. "Regulatory"
offenses are those that arise out of
optional activities, such as having sex
with very young women (who may be
minors), or engaging in business
activities that can cause great harm
(such as the manufacture of foods or
drugs)--or coming back to the United
States after having been deported. The
risk of violations of statutes that
regulate optional activities can be
eliminated simply by not engaging in the
regulated activity. A person who has been
deported from the United States can avoid
any risk of violating 8 U.S.C. sec. 1326
just by not returning to the United
States; he knows he is not welcome. If
nevertheless he decides to return, he had
better make sure he has the Attorney
General’s express consent.
Affirmed.