U.S. v. Medina-Villa

• Citation: 567 F.3d 507
• Decision Date: 28 May 2009
• Docket Number: No. 07-50396.,07-50396.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cosme MEDINA-VILLA, also known as Cosme Medina-Maella, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

567 F.3d 507

UNITED STATES of America, Plaintiff-Appellee, v. Cosme MEDINA-VILLA, also known as Cosme Medina-Maella, Defendant-Appellant.

No. 07-50396.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2009.

Filed May 28, 2009.

[567 F.3d 509]

Michelle D. Anderson, Law Offices of Michelle D. Anderson, San Diego, CA, for defendant-appellant Cosme Medina-Villa.

Karen P. Hewitt, U.S. Atty., Christina M. McCall (on the brief), and Mark R. Rehe (at argument and on supplemental briefing), Asst. U.S. Attys., San Diego, CA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Southern District of California, John A. Houston, District Judge, Presiding. D.C. No. CR-06-00203-JAH-1.

Before: HARRY PREGERSON, SUSAN P. GRABER, and KIM McLANE WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

Cosme Medina-Villa ("Medina"), also known as Cosme Medina-Maella, returns to our court, again convicted of attempted reentry into the United States after removal in violation of 8 U.S.C. § 1326. He was sentenced to a sixty-month term of imprisonment and three years of supervised release, following a sixteen-level increase in his offense level for a prior conviction under California Penal Code section 288(a), which criminalizes lewd and lascivious acts on a child under fourteen. We must decide whether, in light of Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), a conviction under section 288(a) constitutes "sexual abuse of a minor," qualifying it as a "crime of violence" that warrants the sixteen-level increase under U.S.S.G. § 2L1.2. We hold that it does.

We must also decide whether the district court erred in denying (1) Medina's motion to dismiss the indictment grounded in the government's deportation of material witnesses without first informing Medina of his right to retain them, and (2) Medina's motion to suppress his initial statements to the field agent for failure to give Miranda warnings. We affirm the district court's rulings and, under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), reject Medina's argument on appeal that his conviction and sentence are unconstitutional.

I. FACTUAL AND PROCEDURAL BACKGROUND

Medina, who was seen by a border patrol agent running from the fence between the United States and Mexico along with two other individuals, was apprehended after getting into the passenger seat of a parked car. Blocking the car's escape with his own parked vehicle, Agent Mills approached the suspects with his gun drawn and ordered the driver out of the car. Mills then asked Medina about his citizenship and immigration status, and Medina answered that he was a Mexican citizen with no immigration papers. Medina was then arrested, waived his Miranda rights, and was interrogated at a border patrol station. He told the agents that he was forced to cross the border under threat of physical harm. He explained that a smuggler tricked him to get him close to the border with the promise of work, obtained the phone number of Medina's family members and, under threat of injury, told them to pay $1,300. Medina also stated that he was kept in the smuggler's house for several days without food and that he was beaten when he tried to turn back from the fence. The border patrol agents then interviewed on the record the two other Mexican nationals apprehended with Medina. After determining that the witnesses did not corroborate Medina's allegations of duress, the government deported them to Mexico. Neither Medina nor his counsel received an opportunity to interview the witnesses before they were deported.

Before trial, Medina moved to dismiss the indictment on the grounds that he was not advised of his right to retain material witnesses and that the government acted in bad faith in deporting the witnesses. After holding an evidentiary hearing, the district court denied the motion, finding that the government did not act in bad faith and that the deported witnesses would not have provided testimony favorable to Medina. Medina also moved to suppress the statements he made to Mills during the questioning immediately upon apprehension ("field statements"). Following another evidentiary hearing, the district court denied the motion, finding that Medina was not in custody during that time. The jury convicted Medina of attempted reentry into the United States after removal in violation of 8 U.S.C. § 1326.

Medina's prior criminal history was particularly relevant to the sentence imposed by the district court. In 1999, Medina—known at that time as Medina-Maella—was convicted of violating California Penal Code section 288(a), which prohibits lewd and lascivious acts on a child under fourteen, and was subsequently deported. He attempted reentry soon thereafter and was convicted under 8 U.S.C. § 1326, with a sixteen-level increase under U.S.S.G. § 2L1.2 for the prior section 288(a) conviction. In a published opinion, we upheld the district court's conclusion that a conviction under California Penal Code section 288(a) is a categorical "crime of violence," mandating the sixteen-level increase under U.S.S.G. § 2L1.2. See United States v. Medina-Maella, 351 F.3d 944 (9th Cir.2003). Medina was again deported.

At issue here is Medina's second unlawful reentry. For this most recent violation of § 1326, the district court sentenced Medina to sixty months' imprisonment and three years' supervised release, again applying the sixteen-level increase for the prior conviction of a "crime of violence," pursuant to U.S.S.G. § 2L1.2. The district court relied squarely on our Medina-Maella decision, but also noted that, "within the contemporary meaning, that offense ... is categorically a crime of violence ... even without Medina." Medina timely appealed.

II. JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002).

We review de novo the district court's denial of a motion to dismiss the indictment for failure to retain a witness, and we review the district court's underlying findings of fact for clear error. United States v. Pena-Gutierrez, 222 F.3d 1080, 1085 n. 1 (9th Cir.2000).

We also review de novo whether a defendant was entitled to Miranda warnings. United States v. Galindo-Gallegos, 244 F.3d 728, 730 (9th Cir.2001). "Whether a person is `in custody' for purposes of Miranda is a mixed question of law and fact warranting de novo review." United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (alterations and internal quotation marks omitted).

III. DISCUSSION

A. Sixteen-Level Increase for a Conviction under California Penal Code section 288(a)

Medina argues that his 1999 conviction under California Penal Code section 288(a) for lewd and lascivious acts with a child under the age of fourteen does not warrant a sixteen-level increase in his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court, relying on Medina-Maella, held that a section 288(a) conviction constitutes a "crime of violence," which triggers the sixteen-level increase. We affirm the district court and hold that our recent en banc decision in Estrada-Espinoza does not undermine its conclusion.

California Penal Code section 288(a) criminalizes the conduct of "[a]ny person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." For a violation of 8 U.S.C. § 1326, the Sentencing Guidelines provide for a base offense level of eight and instruct that the offense level be increased by sixteen levels "[i]f the defendant previously was deported ... after ... a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines' definition of "crime of violence" includes, inter alia, "sexual abuse of a minor." Id. at cmt. n. 1(B)(iii).¹ In 2003, in an appeal involving the identical defendant and the identical crime as those before us now, we held that a conviction under section 288(a) "constitutes `sexual abuse of a minor,' and is therefore a `crime of violence' for purposes of U.S.S.G. § 2L1.2(b)(1)(A) (2002)." Medina-Maella, 351 F.3d at 947.

We reaffirm that decisional law defining the term "sexual abuse of a minor" in the sentencing context, U.S.S.G. § 2L1.2, is informed by the definition of the same term in the immigration context, 8 U.S.C. § 1101(a)(43)(A),² and vice versa, as established in Medina-Maella. Analyzing the term in U.S.S.G. § 2L1.2 in Medina-Maella, we expressly relied upon the analysis in United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999), which took into account the meaning of "sexual abuse of a minor" in 8 U.S.C. § 1101. Medina-Maella, 351 F.3d at 947. Further, Estrada-Espinoza established that "Congress intended `sexual abuse of a minor' [in § 1101(a)(43)(A)] to carry its standard criminal definition." 546 F.3d at 1156. Contrary to the government's argument, nothing in Estrada-Espinoza overrules prior case law interpreting the provisions in a parallel manner. Moreover, the Supreme Court directs that "we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context." Leocal v. Ashcroft, 543 U.S. 1, 12 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). With this admonition in mind, we outline the historical treatment of section 288(a) and related laws in our circuit.

1. Case Law Establishing Section 288(a) as a Crime of Violence

Under the 1997 version of U.S.S.G. § 2L1.2, a sixteen-level increase was warranted if the conviction constituted an "aggravated felony"; thus, in the sentencing context, co...