212 F.3d 1162 (9th Cir. 2000), 99-50414, United States v. Pacheco Medina

Docket Nº:99-50414
Citation:212 F.3d 1162
Party Name:UNITED STATES OF AMERICA,Plaintiff-Appellee, v. ALEJANDRO PACHECO-MEDINA, Defendant-Appellant.
Case Date:May 16, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1162

212 F.3d 1162 (9th Cir. 2000)




No. 99-50414

United States Court of Appeals, Ninth Circuit

May 16, 2000

Argued and Submitted April 13, 2000

COUNSEL: Tony L. Cheng, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Roger W. Haines, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, Chief District Judge, Presiding. D.C. No. CR-98-03749-JNK

Before: Ferdinand F. Fernandez and Kim McLane Wardlaw, Circuit Judges, and Charles R. Weiner, 1 District Judge.

FERNANDEZ, Circuit Judge:

Alejandro Pacheco-Medina appeals his conviction and sentence for being found in the United States after he had been deported. See 8 U.S.C. S 1326. He claims that the evidence will not support the conviction because it shows that he did not actually manage to enter the United States. We agree and reverse for entry of an acquittal.


There can be little doubt that Pacheco was deported from the United States on December 7, 1998.2 There is no doubt

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whatsoever that he was caught on his way back into the United States just two days later.

On December 9, 1998, Pacheco and two others began climbing the international boundary fence that separates the United States from Mexico. On this side of the border was the parking lot of the United States Customs compound. A surveillance video camera detected them as they scaled the fence, and the monitor immediately contacted Border Patrol Agent Dionicio Delgado, who was on bike patrol at the time. Within a matter of seconds Agent Delgado responded to the call. He arrived at the lot just as the three landed. They dropped off the fence and were crouched in preparation for escape into the country at large.

Pacheco's two companions were nabbed immediately, but Pacheco ran by the agent, who instantly gave chase. Pacheco never left the agent's sight except for a split second as he rounded a corner, and within a few yards of the border3 he was captured and taken into custody. Thereafter, he admitted many of the elements of the crime.

At trial, Pacheco moved for an acquittal. See Fed. R. Crim. P. 29. He claimed that because he was never free from official restraint, in legal contemplation he had not even entered the United States. The district court disagreed, he was convicted and sentenced, and this appeal ensued.


The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We have jurisdiction pursuant to 28 U.S.C. S 1291.

We review the denial of a motion for acquittal under Federal Rule of Criminal Procedure 29 de novo. See United States v. Neill, 166 F.3d 943, 948, (9th Cir.), cert. denied, 526 U.S. 1153, 119 S.Ct. 2037, 143 L.Ed. 2d 1046 (1999). "Consequently, this court must review the evidence presented against the defendant in the light most favorable to the government to determine whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (citation and some internal quotation marks omitted).


As we begin to consider whether Pacheco committed a crime, we do so with the knowledge that he was an alien, he had been removed from the country, and he had again, just two days later, set foot on United States soil. It is also clear that it is a crime for an alien to enter, attempt to enter, or "at any time [be] found in" the United States after having once been deported from this country. 8 U.S.C. S 1326(a). Thus, a general reading would suggest that Pacheco did commit the crime because he surely left Mexico for the United States, and he just as surely was found on our soil after he came over the border fence. But as a matter of law it is not quite that easy because physical presence is not enough. That is most clearly shown in the concept of "entry," a concept which has a long judicial history. As the Supreme Court has pointed out, "[t]he definition of `entry' as applied for various purposes in our immigration laws was evolved judicially." Rosenberg v. Fleuti, 374 U.S. 449, 453, 83 S.Ct. 1804, 1807, 10 L.Ed. 2d 1000 (1963). The definition did not enter the immigration statutes until 1952. See id.


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