U.S. v. Marte

• Decision Date: 13 January 2004
• Docket Number: No. 02-16722.,02-16722.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto Antonio MARTE, a.k.a. Martes Rosa, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

356 F.3d 1336

UNITED STATES of America, Plaintiff-Appellee, v. Roberto Antonio MARTE, a.k.a. Martes Rosa, Defendant-Appellant.

No. 02-16722.

United States Court of Appeals, Eleventh Circuit.

January 13, 2004.

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Beatriz Galbe Bronis, Asst. Federal Public Defender, Kathleen M. Williams and Ricardo Javier Bascuas, Federal Public Defenders, Miami, FL, for Defendant-Appellant.

Laura Thomas Rivero, Anne R. Schultz, Kathleen M. Salyer, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and MILLS^*, District Judge.

CARNES, Circuit Judge:

Roberto Antonio Marte appeals his conviction under 8 U.S.C. § 1326 for attempted illegal reentry into the United States following deportation. His principal contention on appeal is that 8 C.F.R. § 212.2 either authorized his conduct or rendered § 1326 unconstitutionally vague. Marte also raises contentions about the district court's granting of two government motions in limine and about the sufficiency of the evidence to convict him. Finding none of his arguments persuasive, we affirm.

I.

Marte, a citizen of the Dominican Republic, legally entered the United States in 1990, lived in New York with his family, and became a legal permanent resident. In December 1994, he was convicted of sale of a controlled substance in the third degree, which is an aggravated felony for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). After serving approximately a year and a half in prison, Marte was released into the custody of the Immigration and Naturalization Service.¹ The INS had obtained a warrant of deportation from an immigration judge, and on July 4, 1996, Marte was escorted to the airport by two INS agents and put on a flight out of the United States.

Before leaving on the deportation flight, Marte read and signed an INS notice in his native Spanish. It informed him that he could not seek readmission to the United States without first obtaining the Attorney General's permission and listed the offices to which he could write to seek such approval. After Marte's deportation, his mother and sister relocated to the Orlando, Florida area.

Approximately four and a half years later, on February 4, 2001, Marte arrived at Miami International Airport on a one-way ticket from the Dominican Republic and presented himself to an immigration officer. Marte showed the primary immigration inspector his valid Dominican passport, his genuine but expired Form I-551 Alien Registration Statement ("green card"), and his one-way ticket from Santo Domingo to Miami. He also presented a customs declaration form listing his country of citizenship as the Dominican Republic, his country of residence as the United States, and his address in the United States as "Kissimmee, Orlando, Florida." Marte never disclosed that he had been deported or that he did not have permission to apply for reentry. After the primary immigration inspector scanned Marte's green card into the computer and discovered that he was a prior deported felon, he sent Marte for a secondary inspection.

At that point, a senior inspector confirmed that an immigration judge had ordered Marte's deportation in 1996 because of his aggravated felony conviction. He checked Marte's immigration file and found no indication that Marte had permission to apply for reentry as required by 8 U.S.C. § 1326. The inspector also obtained a certificate of nonexistence of record from the main INS records office, which confirmed that Marte did not have permission to apply to reenter the United States. During this secondary inspection, Marte admitted that he had previously been deported, but he never disclosed that he lacked permission to apply for reentry and never requested the form necessary to apply for such permission. Marte was arrested and charged with attempted illegal reentry in violation of 8 U.S.C. § 1326.

Before trial, the government filed a motion in limine, which Marte opposed, to preclude testimony relating to Marte's specific intent in presenting himself at Miami International Airport. Concluding that attempted illegal reentry is a general intent crime, the district court granted the government's motion. A jury trial of the case began on September 10, 2001, but a mistrial was declared because of the terrorist attacks on September 11, 2001.

Before the retrial, the government presented a second motion in limine to preclude a defense based on 8 C.F.R. § 212.2. Marte opposed this motion and moved to have 8 U.S.C. § 1326 declared unconstitutionally vague. He argued that when read in conjunction with the regulations, the statutory provision did not give clear notice of the conduct that was prohibited and allowed for arbitrary enforcement. The court granted the government's second motion in limine. Then or thereafter, the court also refused to declare § 1326 unconstitutional.

Marte subsequently waived trial by jury, and the case was tried to the bench. The district court found Marte guilty of attempted illegal reentry into the United States in violation of 8 U.S.C. § 1326.

II.

Marte's first contention, and the one which his attorney calls the "central point" of this appeal, is that his conviction violates due process because 8 C.F.R. § 212.2 either authorized his conduct or is unconstitutionally vague. Specifically, Marte asserts that § 212.2 is an implementing regulation, and the district court erred in applying § 1326 without looking to the regulation.

When a regulation implements a statute, the regulation must be construed in light of the statute, see Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (5th Cir.1973)², but where a regulation conflicts with a statute, the statute controls, see Legal Environmental Assistance Found., Inc. v. U.S. EPA, 118 F.3d 1467, 1473 (11th Cir.1997).

A.

As for Marte's contention that his conduct was authorized, the statute under which he was convicted provides, in relevant part, that:

any alien who —

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States ... the Attorney General has expressly consented to such alien's reapplying for admission...

shall be fined under Title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. § 1326(a). Standing alone, that statutory provision is not unconstitutionally vague. See United States v. Palacios-Casquete, 55 F.3d 557, 560-61 (11th Cir. 1995). Because Marte had been deported, the statute plainly required him to obtain the Attorney General's express consent to reapply for admission "prior to his reembarkation" in the Dominican Republic to come to Miami.

The question, then, is whether the regulation affects the meaning and application of § 1326 in this case. Marte directs us to 8 C.F.R. §§ 212.2(f) and (i) for his first argument. Section 212.2(f) provides:

Within five years of the deportation or removal, or twenty years in the case of an alien convicted of an aggravated felony, an alien may request permission at a port of entry to reapply for admission to the United States. The alien shall file the Form I-212 with the district director having jurisdiction over the port of entry.

8 C.F.R. § 212.2(f). Section 212.2(i) states: "[i]f the alien filed a Form I-212... at a port of entry, the approval of the Form I-212 shall be retroactive to ... [t]he date on which the alien embarked or reembarked at a place outside the United States...." 8 C.F.R. § 212.2(i)(1)(i). Together, these provisions mean that if an alien files a Form I-212 at a port of entry and is granted permission to apply for reentry, § 212.2(i) operates to make that permission retroactive to the time of the alien's "reembarkation at a place outside the United States," so that the alien does not violate § 1326 when he goes through the authorized procedure to apply for entry. See 8 U.S.C. § 1326(a)(2)(A).

Marte's problem is he made no attempt to file a Form I-212 that, if approved, would have given him the Attorney General's consent, retroactive to the date of his embarkation in the Dominican Republic, to apply to enter this country. He says that does not matter because § 212.2 is an implementing regulation that must be read in conjunction with § 1326, and that §§ 212.2(f) and (i) authorized his conduct. We disagree.

Even assuming that the § 212.2 regulation implements the § 1326 statutory provision, the regulation does not authorize a deported alien to come to a port of entry and attempt to enter the United States without filing a Form I-212. If the regulation authorized such conduct, it would render any deported alien found at a port of entry immune from criminal liability under § 1326 and would conflict with the clear language of § 1326 requiring that the Attorney General expressly consent to the alien's reapplying for admission. See 8 U.S.C. § 1326(a)(2)(A). As we have already noted, where a regulation conflicts with a statute the regulation yields, not the statute.

B.

Marte contends in the alternative that §§ 212.2(f) and (i) of the regulations, when read in conjunction with § 1326 of the code, did not give him clear notice that his conduct would violate § 1326, thus allowing for arbitrary enforcement of that statutory provision against him. In other words, he says that it is unconstitutionally vague. The void-for-vagueness doctrine requires that a penal statute "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Fisher, 289 F.3d 1329, 1333 (11th Cir.2002) (citation and internal quotation omitted)...