United States v. Miguel Lombera-Valdovinos

429 F.3d 927 UNITED STATES of America, Plaintiff-Appellee, v. Miguel LOMBERA-VALDOVINOS, Defendant-Appellant. No. 04-50390. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 2005. Filed November 30, 2005. Timothy A. Scott, San Diego, CA, for the defendant-appellant. Ileana M. Ciobanu, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Before: B. FLETCHER, RYMER and FISHER, Circuit Judges. FISHER, Circuit Judge: 1 Defendant-appellant Miguel Lombera-Valdovinos ("defendant") principally appeals the district court's denial of his motion for acquittal after a jury returned a guilty verdict for attempted illegal reentry. 1 We have jurisdiction under 28 U.S.C. § 1291 . 2 We consider the question of whether it is possible to convict a previously deported alien for attempted illegal reentry into the United States under 8 U.S.C. § 1326 when he crosses the border with the intent only to be imprisoned. We conclude that it is not, because attempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. The government, operating under a misconception about the…

Defendant-appellant Miguel Lombera-Valdovinos (“defendant”) principally appeals the district court’s denial of his mo *928 tion for acquittal after a jury returned a guilty verdict for attempted illegal reentry. 1 We have jurisdiction under 28 U.S.C. § 1291 .

We consider the question of whether it is possible to convict a previously deported alien for attempted illegal reentry into the United States under 8 U.S.C. § 1326 when he crosses the border with the intent only to be imprisoned. We conclude that it is not, because attempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. The government, operating under a misconception about the meaning of official restraint, failed to introduce evidence to support a finding of such intent, so we must reverse.

I. Background

At trial, Border Patrol agent Guillermo Avila testified to the following facts. On October 29, 2003, Avila was patrolling the U.S.-Mexican border. He sat in a marked border patrol vehicle between the “primary fence,” marking the actual U.S./ Mexican border, and the “secondary fence,” located about 100 feet north of the primary fence. With…

dissenting:

The question here is not whether Lomb-era-Valdovinos committed the crime of illegal “reentry” or “being found in” the United States, which cannot be established unless the alien was free of “official re *931 straint” between the time of his crossing the border and the time of his arrest. See, e.g., United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000) (holding that an alien who is never free from official restraint does not commit the crime of being found in the United States). Rather, the question is whether he had the specific intent, that is, the purpose or conscious desire, to “reenter” the United States. See United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc) (holding that attempted reentry in violation of 8 U.S.C. § 1326 is a specific intent crime). Lombera-Valdovinos posits that his only purpose in trying to enter the country was to go to jail. Thus, in his view, he could not have intended to “reenter” the country free of official restraint.

I dissent because Lombera-Valdovinos’s theory — that he could not have had the specific intent to “enter” the United States because his only purpose was to go to jail — is based on a…