U.S. v. Cardenas-Alvarez

• Decision Date: 26 March 1993
• Docket Number: No. 92-8311,CARDENAS-ALVARE,D,92-8311
• Citation: 987 F.2d 1129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Refugio Albertoefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1129

987 F.2d 1129

UNITED STATES of America, Plaintiff-Appellee, v. Refugio Alberto CARDENAS-ALVAREZ, Defendant-Appellant.

No. 92-8311.

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 26, 1993.

Bertha A. Zuniga, El Paso, TX (court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Joseph H. Gay, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

BACKGROUND

Refugio Alberto Cardenas-Alvarez (Cardenas) was charged with attempting to illegally re-enter the United States after having been deported as a result of a conviction for unlawful distribution, manufacture, dispensation, sales, and possession of cocaine. The Government attached a notice of enhanced penalty to the indictment which informed Cardenas that upon conviction, a harsher sentence would be requested pursuant to 8 U.S.C. § 1326(b). A jury found Cardenas guilty of the offense charged. Over Cardenas's objections to the Presentence Report (PSR)'s calculation of a total offense level of 24 and a criminal history category of VI, the court sentenced the defendant to a term of imprisonment of 100 months and ordered him not to re-enter the United States without legal documentation during a subsequent three-year supervised release period.

OPINION

Cardenas challenges the sufficiency of the evidence, asserting that the Government failed to prove beyond a reasonable doubt that he attempted to re-enter the United States. His factual challenge is that he was not attempting to re-enter the United States, but was merely trying to obtain information on how he could reclaim his lost United States residence. He also argues that he could not legally attempt re-entry because he was never free of official restraint at the border area.

In reviewing a sufficiency of the evidence challenge, this Court must examine the evidence in the light most favorable to the verdict and uphold the conviction if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Gallo, 927 F.2d 815, 820 (5th Cir.1991). All reasonable inferences and credibility choices are reviewed in favor of the verdict. The evidence is sufficient if a rational trier of fact could have found that the Government established guilt beyond a reasonable doubt. United States v. Vasquez, 953 F.2d 176, 181 (5th Cir.1992). Cardenas properly preserved this issue by moving for a judgment of acquittal at the close of the Government's case, and again at the close of all of the evidence. See United States v. Pierre, 958 F.2d 1304, 1310-11 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992).

Cardenas was charged with violating 8 U.S.C. § 1326, attempted re-entry into the United States by a deported alien. In order to obtain a conviction for this offense, the Government must prove that:

1) the defendant was an alien at the time of the alleged offense;

2) the defendant had previously been arrested and deported 3) the defendant attempted to enter the United States; and

4) the defendant had not received the express consent of the Attorney General of the United States to apply for readmission to the United States since the time of his previous arrest and deportation.

See United States v. Terrazas-Carrasco, 861 F.2d 93, 96 (5th Cir.1988); United States v. Campos-Asencio, 822 F.2d 506, 508 n. 1 (5th Cir.1987).

The trial transcript indicates that there was no dispute as to elements one, two, and four. Cardenas, who took the stand in his own defense, testified that he is from Chihuahua, Mexico, and is not a U.S. citizen. Also, the Government presented the jury with exhibits that indicated that Cardenas had been found to be an alien. During cross-examination, Cardenas admitted that while in the United States, he had been convicted of criminal offenses including burglary in 1981, illegal re-entry in 1985, criminal tampering in 1988, and a cocaine offense in 1990 which resulted in his deportation. Other proffered documents confirmed that Cardenas had been deported. The last element, that the defendant had not received the express consent of the Attorney General of the United States to apply for readmission to the United States since the time of his previous arrest and deportation, was also established at trial and is uncontested on appeal.

Cardenas admitted that he came to the Paso del Norte bridge at El Paso on January 5, 1992. He testified that he previously went to the bridge in December 1991, and was told that he needed to present identification in order to obtain information on reacquiring his immigration papers. He further testified that he returned to the bridge in January with his Mexican driver's license. He contends that he indicated to Officer Cole in Spanish that he wanted information on how he could replace his immigration papers. Lastly, Cardenas stated that because he had successfully entered previously into the United States by "wading the river," he could have done so again if his intent was to illegally re-enter.

However, the officers' testimonies contradicted these contentions. United States Customs Inspector Chris Miller testified that Cardenas approached his pedestrian lane at 5:15 a.m., declared that he was a U.S. citizen and that he was returning to Denver, Colorado, where he had been born. Miller stated that Cardenas initially spoke in English and later began answering in Spanish. Miller testified that upon inquiry, Cardenas indicated that he had no identification but he produced a wallet containing a Mexican driver's license. Miller then referred Cardenas to INS Inspector Curtis Cole for citizenship verification.

Cole testified that Cardenas showed him a Mexican driver's license and indicated to him in Spanish that he was a legal resident alien, born in Chihuahua, and that he had lost his immigration documents while on vacation in Chihuahua. After checking the information provided by Cardenas, Cole indicated that the computer provided no information that Cardenas was a legal resident alien. Cole testified that he turned the verification process over to his supervisor, Inspector Treviso, who found that Cardenas had an immigration record and had been twice deported. Supervisor Immigration Inspector Raquel Treviso testified that the computer search verified that Cardenas was an alien and that Cardenas eventually admitted that he had been deported.

Because all reasonable inferences and credibility choices are reviewed in favor of the verdict, the jury's belief of the inspectors' versions of what happened over Cardenas's version appears reasonable. Cardenas's contention that he was merely inquiring into how he could regain his citizenship and that he was not attempting to enter the United States did not create a reasonable doubt as to his intent. Vasquez, 953 F.2d at 181.

Cardenas further asserts that the evidence was insufficient because "entry" requires freedom from official restraint and, therefore, any attempt to enter must also. He argues that he could not have attempted to re-enter because he was officially restrained by the INS officers. We have not found any published cases on the crime of attempted entry.

Construing another provision of Title 8, namely, § 1324(a)(4), this Court has noted the statutory definition of "entry" as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession." United States v. Hanna, 639 F.2d 194, 195 (5th Cir. Unit B Mar. 1981) (quoting 8 U.S.C. § 1324(a)(4)).

Most courts who have decided what conduct comprises an "entry" have concluded that physical presence in the country is required, as well as freedom from official restraint. See United States v. Kavazanjian, 623 F.2d 730, 736 (1st Cir.1980); Correa v. Thornburgh, 901 F.2d 1166, 1172 (2d Cir.1990); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir.1954); Vitale v. INS, 463 F.2d 579, 581-82 (7th Cir.1972); United States v. Aguilar, 883 F.2d 662, 682 (9th Cir.1989). The Fifth Circuit has not addressed the issue.

Although most of the cases deal with the civil aspects of immigration law, i.e., whether an alien is subject to exclusion...