U.S. v. Melendez-Torres

• Decision Date: 25 August 2005
• Docket Number: No. 04-1914.,04-1914.
• Citation: 420 F.3d 45
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Geraldo Martín MELÉNDEZ-TORRES, a/k/a Gerald Meléndez, Defendant, Appellant.

420 F.3d 45

UNITED STATES of America, Appellee, v. Geraldo Martín MELÉNDEZ-TORRES, a/k/a Gerald Meléndez, Defendant, Appellant.

No. 04-1914.

United States Court of Appeals, First Circuit.

Heard April 4, 2005.

Decided August 25, 2005.

COPYRIGHT MATERIAL OMITTED

Marvin H. Glazier, with whom Vafiades, Brountas & Kominsky, were on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before: TORRUELLA, LYNCH and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge:

Defendant-appellant Gerardo Martín Meléndez-Torres appeals his conviction and sentence, following a bench trial, for re-entering the United States after deportation due to a manslaughter conviction, in violation of 8 U.S.C. § 1326(a). Specifically, Meléndez challenges (1) the sufficiency of the evidence for his conviction, (2) the district court's refusal to grant a downward departure from the Sentencing Guidelines based on his "cultural assimilation" into American society, and (3) the absence of a "fast track" program in the District of Maine to process immigration cases. After careful review, we affirm.

I

On August 18, 1998, Meléndez —a Mexican citizen who had lived in the United States from the age of three and who claims a Maine residency — was ordered deported due to a 1997 manslaughter conviction in Florida. He was flown to Laredo, Texas to consummate the deportation process on January 11, 2001, but was subsequently found in Bucksport, Maine more than a year later, on May 30, 2002.

On June 12, 2003, Meléndez submitted to a bench trial, having waived his right to a jury trial, for the one-count indictment of re-entering the United States after being deported subsequent to an aggravated felony. The parties stipulated, and the court accepted, that Meléndez was an "alien" under 8 U.S.C. § 1326(a)(2), that he was convicted of manslaughter in Florida, that he was on board a Justice Prisoner Alien Transportation System (JPATS) flight that arrived in Laredo, Texas on January 11, 2001, and that he was found in Bucksport, Maine on May 30, 2002.

During the trial, John Remsen, a special agent of the Bureau of Immigration and Customs Enforcement, testified that Meléndez's "A file" — which records every contact an alien has with the immigration service — included a Form I-205 warrant of removal and deportation reflecting Meléndez's deportation. The file also contained a Form I-170, a deportation case checklist, showing that a Form I-294 — which gives the reasons for the deportation and the number of years an alien must wait before returning to the country legally — had been given to Meléndez, although such form could not found. Remsen also testified that Meléndez never applied for, nor received, permission to re-enter the United States.

The next testimony came from Frances González, a Detention Enforcement Officer with the Department of Homeland Security, Immigration Customs Enforcement (formerly the Immigration and Naturalization Service). González, who had worked at the Laredo, Texas port of entry for eight years and was on duty on January 11, 2001, recounted the agency's routine deportation procedures. When a JPATS plane arrives, the prisoners — who number 50 to 120 per day — are individually released from leg irons, handcuffs, and belly chains and are boarded into government buses or vans under the supervision of United States Marshals and Immigration and Customs officers. The prisoners are then transported to a secure area with barriers on all sides, placed into groups of five, and visually observed as they cross the border on foot. Afterward, the officers complete individual I-205 forms, which record the name of the transporting officer, the means of arrival, the port, date, and manner of removal, the alien's photograph and right index fingerprint, and the signature of the officer who witnessed the alien's departure. González testified that she had signed Meléndez's I-205 form on January 11, 2001, and that although she could not remember specific events of that day, she "would not sign a form if [she] was not sure that person did exit the United States." Tr. 76.

On June 30, 2004, Meléndez was found guilty and sentenced to 70 months' imprisonment¹ and three years' supervised release. In so holding, the court rejected Meléndez's argument that he never left the United States, because although no witness testified to actually seeing him leave the country, "the practice of signing [the relevant paperwork] after seeing all of the people [who are being deported] go across without specifically looking for one is sufficient to document that they saw this individual being deported across the border." Tr. 91. The court also denied Meléndez's motion for a downward departure based on "cultural assimilation," stating that Meléndez's case is "not extraordinary," that Meléndez's "assimilation ... in the criminal justice system perhaps weighs against this request," and that cultural assimilation is similar to "family ties responsibility," which is a discouraged factor. S. Tr. 11-12. Finally, the court rejected Meléndez's argument that the absence of a "Fast Track" program in the District of Maine forms a "basis for a downward departure[,] constitutional or otherwise." Id. This appeal follows.

II

A. Sufficiency of the Evidence

Meléndez first argues that the evidence presented at trial was insufficient to support a conviction for illegal re-entry after deportation subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)(2)(b)(2) and § 1101(a)(43)(F). We disagree.

We review challenges to the sufficiency of the evidence following bench trials "de novo, evaluating whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Grace, 367 F.3d 29, 34 (1st Cir.2004) (internal quotation marks and citations omitted). Moreover, "we draw all reasonable evidentiary inferences in harmony with the verdict and resolve all issues of credibility in the light most favorable to the government." Id. Thus, and we now emphasize, "`[t]he evidence may be entirely circumstantial, and need not exclude every hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence.'" United States v. Scantleberry-Frank, 158 F.3d 612, 616 (1st Cir.1998) (quoting United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991)).

In the instant case, the court — to convict Meléndez of violating 8 U.S.C. § 1326(a)(2) and (b)(2) —must have necessarily found that the Government proved beyond a reasonable doubt that Meléndez (1) was an alien, (2) whose deportation was subsequent to a conviction for commission of an aggravated felony, and (3) that he entered or attempted to enter or was later found in the United States, (4) without the express consent of the Attorney General for such entry. Scantleberry-Frank, 158 F.3d at 616 (citing 8 U.S.C. § 1326).

Meléndez's sole sufficiency challenge is directed at the third element: mainly, that the Government offered no conclusive proof that Meléndez actually left the country and was therefore not "deported." See United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir.2001) (holding that an alien cannot be said to have been deported and to have re-entered when the alien never left the country at all). Specifically, Meléndez argues that González's inability to remember the specific events of January 11, 2001 — including the day of the week, the weather, her specific duties that day, where she was positioned, and the actual number of deportees, as well as her inability to recognize Meléndez and whether she actually saw him cross the border — renders insufficient the Government's proof that Meléndez actually left the country. The missing I-294 form also allegedly detracts from the sufficiency of the evidence regarding actual deportation. We disagree.

To the contrary, we find that the evidence adduced at trial amply supports Meléndez's deportation. The routine procedures recounted — including the significant physical restraints on the deportees, the close monitoring by U.S. Marshals and Immigration and Customs officers, the physical barriers to the port of entry, the close surveillance of deportees as they walk across the border in groups of five,² and the Form I-205 checklist indicating that the officer witnessed the deportee cross the border — could lead a rational trier of fact to conclude, beyond a reasonable doubt, that Meléndez was actually deported. See Grace, 367 F.3d at 34. The absence of direct evidence — e.g., the lack of testimony of any individual who personally witnessed Meléndez depart the United States, or of any photograph or videotape showing the same — is irrelevant. As we have repeatedly emphasized, "circumstantial evidence, if it meets all the other criteria of admissibility, is just as appropriate as direct evidence and is entitled to be given whatever weight the [fact finder] deems it should be given." United States v. Gamache, 156 F.3d 1, 8 (1st Cir.1998). In fact, "[t]he evidence [supporting the conviction] may be entirely circumstantial." Scantleberry-Frank, 158 F.3d at 616.

Meléndez nonetheless urges us to follow the Ninth Circuit's holding in Romo-Romo, 246 F.3d at 1272, which we find inapposite. There, the issue pertained to the propriety of a jury instruction, not the sufficiency of the evidence at a bench trial. Id. at 1274 (district court erroneously instructing the jury that "[a]n alien who is subject to a lawful deportation order ..., but who never actually enters Mexico because of his own guile or deceit, may be considered to have been deported"). We find no inaccurate or misconceived perception of this element of deportation in the instant case. Moreover, unlike the defendant in Romo-Romo,...