United States v. Ricardo Rizo-Rizo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 20-50172
AMERICA,
Plaintiff-Appellee, D.C. Nos.
3:20-mj-20210-BMK-H-1
v. 3:20-mj-20210-BMK-H
RICARDO RIZO-RIZO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted August 3, 2021
Pasadena, California
Filed October 29, 2021
Before: Richard A. Paez, Consuelo M. Callahan, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
2 UNITED STATES V. RIZO-RIZO
SUMMARY *
Criminal
Affirming a conviction for attempted illegal entry in
violation of 8 U.S.C. § 1325(a)(1), the panel held that
§ 1325(a) is a regulatory offense such that the presumption
in favor of scienter does not apply, and thus knowledge of
alienage is not an element.
COUNSEL
Doug Keller (argued) and Michael Marks, Federal
Defenders of San Diego Inc., San Diego, California, for
Defendant-Appellant.
David Chu (argued), Assistant United States Attorney;
Daniel E. Zipp, Chief, Appellate Section, Criminal Division;
Robert S. Brewer, Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RIZO-RIZO 3
OPINION
BENNETT, Circuit Judge:
Defendant Ricardo Rizo-Rizo claims knowledge of
alienage is an element of the crime of attempted illegal entry
in violation of 8 U.S.C. § 1325(a)(1). The magistrate judge
rejected Rizo-Rizo’s contention that knowledge of alienage
was such an element and so did not recite it as an element
during Rizo-Rizo’s plea colloquy. Rizo-Rizo nonetheless
entered a guilty plea and then appealed to the district court,
which also rejected his contention. We have jurisdiction
pursuant to 28 U.S.C. § 1291 to consider Rizo-Rizo’s appeal
of those decisions. We hold that 8 U.S.C. § 1325(a) is a
regulatory offense, and thus knowledge of alienage is not an
element.
I.
A border patrol agent found and stopped Rizo-Rizo near
the United States/Mexico border. When questioned, Rizo-
Rizo admitted that he was a citizen of Mexico without
appropriate immigration documents to be legally present in
the United States. As a result, the agent arrested him. Rizo-
Rizo was then questioned again, waived his Miranda rights,
and confirmed that he was a citizen of Mexico who had just
“illegally entered the United States . . . .”
Rizo-Rizo was charged with the misdemeanor of
attempted illegal entry, in violation of 8 U.S.C. § 1325(a)(1),
and he chose to plead guilty without a plea agreement.
During the plea colloquy, the magistrate judge listed these
elements of attempted illegal entry:
First, the Defendant was at the time of
Defendant’s attempted entry into the United
4 UNITED STATES V. RIZO-RIZO
States an alien, that is, a person who is not a
natural born or naturalized citizen or a
national of the United States.
Second, the Defendant had the specific intent
to enter the United States at a time and place
other than as designated by immigration
officers.
Third, the Defendant also had the specific
intent to enter the United States free from
official restraint, meaning the Defendant
intended to enter without being detected,
apprehended, or taken into custody by
government authorities so that he or she
could roam freely in the United States.
And, fourth, the Defendant did something
that was a substantial step toward committing
the crime and that strongly corroborated the
Defendant’s intent to commit the crime.
Defense counsel objected, claiming that “the Defendant
ha[d] to know he was an alien” and thus that the magistrate
judge had improperly omitted an element of the offense. The
magistrate judge overruled the objection, and Rizo-Rizo pled
guilty and was sentenced to time served. On appeal, the
district court affirmed, holding that knowledge of alienage
was not an element of 8 U.S.C. § 1325(a)(1).
II.
We review de novo the adequacy of a plea colloquy.
United States v. Minore, 292 F.3d 1109, 1115 (9th Cir.
2002). Whether knowledge of alienage is an element of
UNITED STATES V. RIZO-RIZO 5
8 U.S.C. § 1325(a)(1) is an issue of first impression in the
Ninth Circuit.
III.
We begin, of course, with the statutory text. “In
determining what mental state is required to prove a
violation of the statute, we look to its words and the intent of
Congress.” United States v. Price, 980 F.3d 1211, 1218 (9th
Cir. 2019) (quoting I.R. ex rel. E.N. v. L.A. Unified Sch.
Dist., 805 F.3d 1164, 1167 (9th Cir. 2015)). Section
1325(a)(1) provides that “[a]ny alien who . . . enters or
attempts to enter the United States at any time or place other
than as designated by immigration officers” will be fined, or
imprisoned up to six months, or both, for a first offense.
8 U.S.C. § 1325(a)(1).
While subsection (a)(1) contains no express mens rea
requirement, that subsection’s attempt offense incorporates
the common law requirement of specific intent to commit the
offense. Cf. United States v. Gracidas-Ulibarry, 231 F.3d
1188, 1196 (9th Cir. 2000) (en banc) (explaining that
attempted illegal reentry is a specific intent crime under
common law principles of attempt). But that specific intent
element does not require the government to prove
knowledge of alienage. The alienage element precedes the
phrase “enters or attempts to enter”: “Any alien who . . .
enters or attempts to enter the United States . . . .” 8 U.S.C.
§ 1325(a)(1). So the specific intent goes to the entry, not the
status of the person entering. The specific intent of the
attempt offense in § 1325 is simply that the person
specifically intended to enter the United States at a time or
6 UNITED STATES V. RIZO-RIZO
place other than as designated by immigration officers, as
correctly recited by the magistrate judge. 1
Rizo-Rizo argues that our decisions in Gracidas-
Ulibarry, 231 F.3d 1188, and United States v. Smith-
Baltiher, 424 F.3d 913 (9th Cir. 2005), foreclose this
interpretation. In Smith-Baltiher, we held that a defendant
charged with attempted illegal reentry, 8 U.S.C. § 1326(a),
was entitled to present evidence that he thought he was a
United States citizen. 424 F.3d at 925. Section 1326(a)
penalizes “any alien who [having been deported] enters,
attempts to enter, or is at anytime found in, the United States,
unless . . . the Attorney General has expressly consented . . .
[or] he was not required to obtain such advance consent.”
8 U.S.C. § 1326(a) (emphasis added). The attempt offense
in § 1326(a) requires that “the defendant had the purpose,
i.e.[,] conscious desire, to reenter the United States without
the express consent of the Attorney General.” Smith-
Baltiher, 424 F.3d at 923 (quoting Gracidas-Ulibarry,
231 F.3d at 1196). Thus, a defendant’s knowledge of his
citizenship status can be relevant to whether the defendant
believed he needed the Attorney General’s permission
before attempting reentry. Id. at 925. By contrast, the
attempt offense in § 1325(a)(1) contains no similar provision
for which the defendant’s knowledge of his citizenship status
would matter. And, in Smith-Baltiher, we did not hold that
1
We have recognized that, “for the purposes of § 1326, ‘enter’ has
a narrower meaning than its colloquial usage.” United States v.
Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005). “An alien has
not entered the United States under § 1326 unless he does so ‘free from
official restraint.’” Id. (quoting Gracidas-Ulibarry, 231 F.3d at 1191
n.3). Thus, the attempt offense in § 1325(a)(1) also requires that the
person specifically intended to enter without being taken into custody by
government authorities, as the magistrate judge correctly recited as an
element.
UNITED STATES V. RIZO-RIZO 7
knowledge of alienage is an element of § 1326(a)’s attempt
offense. Instead, we decided only that knowledge of
alienage was a possible defense that negates the required
intent (that the defendant intended to enter the United States
without consent). Id. at 925. Smith-Baltiher does not
support Rizo-Rizo.
Rizo-Rizo also argues that a knowledge of alienage
requirement follows from Rehaif v. United States, 139 S. Ct.
2191 (2019), in which the Supreme Court decided that a
defendant must know of his status as an “alien . . . illegally
or unlawfully in the United States” to be convicted of firearm
possession under 18 U.S.C. § 922(g). Id. at 2195. But
Rehaif concerned an express mens rea requirement. “A
separate provision, § 924(a)(2), adds that anyone who
‘knowingly violates’ [§ 922(g)] shall be fined or imprisoned
for up to 10 years.” Id. at 2194. Thus, the question in Rehaif
“concern[ed] the scope of the word ‘knowingly,’” and the
Court determined that it “applie[d] both to the defendant’s
conduct and to the defendant’s status.” Id. There is no such
express mens rea requirement in § 1325(a)(1) that would
apply to the defendant’s status. Thus, Rehaif does not
support Rizo-Rizo’s reading of § 1325(a)(1). See United
States v. Collazo, 984 F.3d 1308, 1324 (9th Cir. 2021) (en
banc) (explaining that “[w]here a statute includes a mens rea
requirement,” courts are “not faced with the question
whether Congress intended to dispense with a mens rea
requirement entirely” but must only determine how far a
“knowingly” modifier extends into the statute).
Though § 1325(a) is silent on knowledge of alienage,
that is not the end of the analysis. Silence itself “does not
necessarily suggest that Congress intended to dispense with
a conventional mens rea element.” Staples v. United States,
511 U.S. 600, 605 (1994); see Rehaif, 139 S. Ct. at 2195.
8 UNITED STATES V. RIZO-RIZO
Rather, we usually construe statutes “in light of the
background rules of the common law, in which the
requirement of some mens rea for a crime is firmly
embedded.” Staples, 511 U.S. at 605 (citation omitted).2
This “presumption” in favor of scienter, however, does not
apply when Congress creates certain regulatory or public
welfare offenses, which “impose a form of strict criminal
liability through statutes that do not require the defendant to
know the facts that make his conduct illegal.” Id. at 606; see
also Morissette v. United States, 342 U.S. 246, 256 (1952).
In construing such regulatory offenses, “we have inferred
from silence that Congress did not intend to require proof of
mens rea to establish an offense.” Staples, 511 U.S. at 606.
So we must decide whether § 1325(a) is a regulatory
offense as to which the presumption in favor of scienter does
not apply. We look at “the peculiar nature and quality of the
offense,” Morissette, 342 U.S. at 259, as well as “the
expectations that individuals may legitimately have in
dealing with the regulated [activity],” Staples, 511 U.S.
2According to Morissette v. United States, 342 U.S. 246, 262
(1952):
Congressional silence as to mental elements in an Act
merely adopting into federal statutory law a concept of
crime already so well defined in common law and
statutory interpretation by the states may warrant quite
contrary inferences than the same silence in creating
an offense new to general law, for whose definition the
courts have no guidance except the Act.
There is no indication that illegal entry by a noncitizen was a common
law crime. Cf. Pena-Cabanillas v. United States, 394 F.2d 785, 788 (9th
Cir. 1968) (finding 8 U.S.C. § 1326, which criminalizes illegal reentry,
was “not based on any common law crime”), abrogated on other
grounds by Gracidas-Ulibarry, 231 F.3d 1188.
UNITED STATES V. RIZO-RIZO 9
at 619. For example, hand grenades are so dangerous that
“one would hardly be surprised to learn that possession of
hand grenades is not an innocent act,” and so the
presumption does not apply. United States v. Freed,
401 U.S. 601, 609 (1971); see also United States v. Balint,
258 U.S. 250, 252–54 (1922) (upholding strict liability for
statute prohibiting the sale of certain narcotics). But the
Supreme Court did apply the presumption to a statute
prohibiting unauthorized possession of food stamps, because
unauthorized possession (as defined by the statute) covered
a broad range of innocent conduct. Liparota v. United
States, 471 U.S. 419, 426 (1985).
We know that § 1325(a) was enacted to control unlawful
immigration. See United States v. Corrales-Vazquez,
931 F.3d 944, 947 (9th Cir. 2019); H.R. Rep. No. 70-2418,
at 7–8 (1929). This is a normal regulatory function of the
sovereign. And § 1325(a)(1) prohibits conduct that
individuals would legitimately expect to be unlawful.
“[C]rossing international borders is a type of conduct
generally subject to stringent public regulation,” United
States v. Martinez-Morel, 118 F.3d 710, 716 (10th Cir. 1997)
(cleaned up), and entering the country outside of designated
ports of entry is a surreptitious type of international border
crossing, see H.R. Rep. No. 70-2418, at 3 (describing entry
outside of a port of entry as “surreptitious or unlawful
entry”). Thus, this is not a case in which interpreting the
statute as a regulatory offense would sweep in “a broad range
of apparently innocent conduct.” Liparota, 471 U.S. at 426.
We also consider the penalties that attach to a violation.
In Staples, the Supreme Court explained that a statute’s
potentially harsh penalty of up to ten years’ imprisonment
conflicts with the concept of a regulatory offense, which
originally “involved statutes that provided for only light
10 UNITED STATES V. RIZO-RIZO
penalties such as fines or short jail sentences.” 511 U.S.
at 616. Thus, “a severe penalty is a further factor tending to
suggest that Congress did not intend to eliminate a mens rea
requirement.” Id. at 618. The penalty for violating
§ 1325(a) is a fine or imprisonment of up to six months for
the first offense, or both. 8 U.S.C. § 1325(a). While the
penalty increases to no more than two years for a subsequent
offense, id., an offender should be on notice that a repeat
entry would be unlawful. Thus, the penalties associated with
violating § 1325(a) at least lean toward Congress intending
the statute to be a regulatory offense.
And, importantly, we do not write on a blank slate. In
Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir.
1968), abrogated on other grounds by Gracidas-Ulibarry,
231 F.3d 1188, we held that § 1326(a), 3 the illegal reentry
3
In pertinent part, § 1326(a) punishes:
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 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 Attorney General has expressly
consented to such alien’s reapplying for admission; or
(B) with respect to an alien previously denied
admission and removed, unless such alien shall
establish that he was not required to obtain such
advance consent under this chapter or any prior Act.
UNITED STATES V. RIZO-RIZO 11
statute, which in 1968 imposed a maximum imprisonment
term of not more than two years, Immigration and
Nationality Act, Pub. L. No. 414, § 276, 66 Stat. 163, 229
(1952) (current version at 8 U.S.C. § 1326), “is a regulatory
statute enacted to assist in the control of unlawful
immigration.” Id. at 788. 4 Because § 1326(a) is a regulatory
offense, “[t]he government need only prove that the accused
is an alien and that he illegally entered [or attempted to
illegally enter] the United States after being deported.”
Pena-Cabanillas, 394 F.2d at 789. 5 Given the similarity of
§§ 1325 and 1326 for regulatory offense purposes (and given
that section § 1326 imposes punishments greater or equal to
§ 1325), we would need a compelling reason to find that
§ 1325(a) is not a regulatory offense. Cf. Metro. Life Ins. v.
Taylor, 481 U.S. 58, 65 (1987) (noting that a presumption
that similar language in statutes covering the same subject
8 U.S.C. § 1326(a). The statutory text of the provision does not
materially differ from the version considered by the Pena-Cabanillas
court.
4
Other circuits similarly view § 1326(a) as a regulatory offense.
See, e.g., United States v. Morales-Palacios, 369 F.3d 442, 448 (5th Cir.
2004), abrogated on other grounds by United States v. Resendiz-Ponce,
549 U.S. 102 (2007); United States v. Carlos-Colmenares, 253 F.3d 276,
279 (7th Cir. 2001); United States v. Martinez-Morel, 118 F.3d 710, 717
(10th Cir. 1997); United States v. Henry, 111 F.3d 111, 114 (11th Cir.
1997); United States v. Hussein, 675 F.2d 114, 115–16 (6th Cir. 1982)
(per curiam).
5
In Gracidas-Ulibarry, we described § 1326(a) as a “general intent”
offense. 231 F.3d at 1195 (interpreting our holding in Pena-Cabanillas).
Rizo-Rizo argues from this that the statute requires a mens rea of
“knowledge.” But “general intent” can mean several things, see United
States v. Bailey, 444 U.S. 394, 403 (1980), and in the context of
§ 1326(a), it means only that the reentry must be a voluntary act, Pena-
Cabanillas, 394 F.2d at 788 n.2 (“We refer to [the voluntary act
requirement] as ‘general intent’ to do or not do the act.”).
12 UNITED STATES V. RIZO-RIZO
has a “similar meaning”); United States v. Novak, 476 F.3d
1041, 1051 (9th Cir. 2007) (en banc) (“[C]ourts generally
interpret similar language in different statutes in a like
manner when the two statutes address a similar subject
matter.”). We could conceivably find such a reason if the
legislative history of § 1325 were sufficiently different. But
the precursor statutes to both § 1325(a) and § 1326(a), which
bear substantially similar language to the modern statutes,
were enacted together in 1929 as part of the same bill to
regulate unlawful immigration. Act of Mar. 4, 1929, Pub. L.
No. 70-1018, § 2, 45 Stat. 1551, 1551; see H.R. Rep. No. 70-
2418, at 6–8 (1929). Likewise, both § 1325(a) and § 1326(a)
were enacted together as part of the Immigration and
Nationality Act of 1952. See Pub. L. No. 82-414, §§ 275,
276, 66 Stat. 163, 229; cf. United States v. Nishiie, 996 F.3d
1013, 1026 (9th Cir. 2021) (noting that when statutes are
enacted shortly after one another and address the same
subject and use similar language, that demonstrates
Congress’s intent that they have the same meaning).
Congress has adopted express mens rea requirements in
other parts of § 1325. Section 1325(a)(3) punishes “[a]ny
alien who . . . attempts to enter or obtains entry to the United
States by a willfully false or misleading representation or the
willful concealment of a material fact.” 8 U.S.C.
§ 1325(a)(3). 6 And § 1325(c) prohibits any individual from
“knowingly enter[ing] into a marriage for the purpose of
evading any provision of the immigration laws.” Id.
§ 1325(c). Adjacent statutes also have express mens rea
6
It makes sense that Congress would add an express mens rea
requirement here. When a noncitizen crosses into the United States at a
non-designated entry point, his entry alone is illegal, but when a
noncitizen crosses at a designated port of entry, only his entry through
willful falsity contravenes the law.
UNITED STATES V. RIZO-RIZO 13
requirements. Section 1324(a)(1)(A) prohibits bringing a
person into the country “knowing that a person is an alien,”
and § 1327 prohibits “knowingly aid[ing] or assist[ing] any
[inadmissible] alien . . . to enter the United States.” See
Pena-Cabanillas, 394 F.2d at 789 & n.4 (identifying express
mens rea provisions in the Immigration and Nationality Act).
Congress also did not include express mens rea requirements
in the precursor provision to § 1325(a), while including such
requirements for other provisions in the same statute. See
Act. of Mar. 4, 1929, 45 Stat. at 1551 (amending a law to
prohibit knowingly bringing into the country a deported
alien). And, of course, “where Congress has carefully
employed a term in one place and excluded it in another, it
should not be implied where excluded.” Pena-Cabanillas,
394 F.2d at 789.
Our analysis confirms that 8 U.S.C. § 1325(a) is a
regulatory offense, and no presumption in favor of scienter
applies. 7 We thus conclude that Congress’s silence as to
knowledge of alienage means what such silence in a
regulatory offense usually means. We therefore hold that
knowledge of alienage is not an element of § 1325(a).
Accordingly, Rizo-Rizo’s conviction is affirmed.
AFFIRMED.
7
Rizo-Rizo claims that a regulatory offense is not enough to defeat
the presumption, and that we must also find “a ‘strong indication’ that
Congress intended § 1325(a)(1) to be a strict-liability offense.” But he
misunderstands the regulatory offense exception: regulatory offenses are
offenses “which we have understood Congress to impose a form of strict
criminal liability through statutes that do not require the defendant to
know the facts that make his conduct illegal.” Staples, 511 U.S. at 606.