U.S. v. Sierra–ledesma

• Decision Date: 02 June 2011
• Docket Number: Nos. 10–3066,10–3067.,s. 10–3066
• Citation: 645 F.3d 1213
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Eusebio SIERRA–LEDESMA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

645 F.3d 1213

UNITED STATES of America, Plaintiff–Appellee,

v.Eusebio SIERRA–LEDESMA, Defendant–Appellant.

Nos. 10–3066

10–3067.

United States Court of Appeals, Tenth Circuit.

June 2, 2011.

Timothy J. Henry, Assistant Federal Public Defender, Wichita, KS, for Defendant–Appellant.Brent I. Anderson, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, KS, for Plaintiff–Appellee.Before KELLY, BALDOCK, and HARTZ, Circuit Judges.BALDOCK, Circuit Judge.

A jury convicted Defendant Eusebio Sierra–Ledesma of the crime of having been found in the United States, without the express consent of the Attorney General, after having been deported, in violation of 8 U.S.C. § 1326(a). Defendant appeals, claiming (1) the district court improperly failed to instruct the jury as to the mens rea required for conviction under Section 1326(a); (2) the Government failed to prove beyond a reasonable doubt that Defendant was not a national of the United States; (3) the district court abused its discretion in admitting Defendant's prior conviction for illegal re-entry; and (4) the Government made improper remarks in its closing argument. To the extent that the sentence imposed for his violation of supervised release in a separate action depends upon his conviction for being found in the United States without authorization, Defendant also appeals that sentence. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Defendant's conviction and sentence.

I.

On August 28, 2009, local police officers stopped Defendant for speeding outside of Dodge City, Kansas. Once the officers determined Defendant had been previously deported, he was transported to the Immigration and Customs Enforcement (ICE) office in Wichita, Kansas. An ICE agent determined from reviewing Defendant's electronic alien file and searching ICE databases that Defendant neither sought nor gained permission to reenter the United States after he was deported in 2008. Shortly thereafter, a grand jury indicted Defendant with one count of being an alien who was previously deported and later found in the United States without the proper legal authority.

At trial, the Government presented the following evidence. In 1996, Defendant was removed to Mexico. Nonetheless, authorities discovered Defendant in Kansas City, Missouri in 1997. He pled guilty to illegal reentry following deportation in violation of Section 1326(a) and was sentenced to eighty-seven months in prison and three years of supervised release. Defendant was deported to Mexico on August 29, 2008. A year (almost to the day) later, authorities found Defendant yet again in the United States in Kansas. After having waived his rights to silence and an attorney, Defendant gave a sworn statement in response to questions posed by an ICE agent with the assistance of an interpreter:

Q. When and where were you born?

A. Dec 16, 1937, Mexico.

Q. Of what country are you a citizen?

A. Mexico.

Q. When, where, and how did you last enter the United States?

A. 2008, Tucson, AZ, walked across the border.

* * *

Q. When were you last deported?

A. Sept, 2008.

* * *

Q. Did you illegally re-enter the United States without permission after your last deportation?

A. Yes.

* * *

Q. Have you ever applied to the Attorney General of the United States for permission to re-enter the United States after your deportation, exclusion, or removal?

A. No.

ROA Supp. Vol. II, Gov. Ex. 15. An ICE agent also testified that a search of all available ICE databases revealed that after Defendant was deported in 2008 he had neither sought nor gained permission to reenter the United States.

Defendant did not call any witnesses. Defense counsel objected to the admission of Defendant's prior conviction for illegal reentry and requested that the district court instruct the jury it must find Defendant acted with knowledge as to each element of the crime charged. Nevertheless, the district court admitted the evidence of Defendant's prior conviction and refused his request to instruct the jury as to intent. In closing, defense counsel argued the Government had not met its burden with regard to the first and fourth elements of the offense, i.e., that the Government failed to prove Defendant was not a United States national and did not have authorization to return to the United States. At which point, the district court gave the jury an additional instruction on the definition of a United States national at the request of the Government and over the objection of Defendant. Notably, at no point did Defendant suggest he had involuntarily or unintentionally reentered the United States.

The jury returned a guilty verdict. The court sentenced Defendant to 105 months in prison, followed by three years of supervised release. In a parallel action, Defendant was charged with violating the terms of the supervised release imposed as part of the sentence for his 1997 conviction by committing another federal crime (being found in the United States without authorization) and failing to remain outside of the United States. Taking judicial notice of the jury's verdict, the district court determined Defendant had committed the supervised release violations with which he was charged. As a result, the district court sentenced Defendant to twenty-two months in prison to run consecutively to the 105–months sentence for the newly-convicted offense.

II.

Defendant first argues the district court's failure to instruct the jury as to the intent necessary for conviction pursuant to Section 1326(a) violated his Fifth Amendment right to due process and his Sixth Amendment right to have a jury find all elements of the charged crime beyond a reasonable doubt. He claims Flores–Figueroa v. United States, ––– U.S. ––––, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), requires that a scienter element applies to all elements of Section 1326's crime of being a previously deported alien found in the United States without authorization. In particular, Defendant protests the district court's omission of “knowingly” from the third element—“found in the United States”—of that crime.

“We review the district court's interpretation of a statute de novo.” United States v. Luke–Sanchez, 483 F.3d 703, 705 (10th Cir.2007). Similarly, we review de novo a district court's “jury instructions as a whole and view them in the context of the entire trial to determine if they ‘accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case.’ ” United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir.2008) (quoting United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir.2006)). The Supreme Court has held that the Fifth and Sixth Amendments “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). “[A]n instruction that omits an element of the offense[,]” however, “does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Therefore, when a defendant protests the omission of an element at trial and on appeal, we must decide whether that error is harmless, that is, “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Id. at 15, 119 S.Ct. 1827 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

A.

Section 1326(a) provides:

Subject to subsection (b) of this section, 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 or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,

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

Thus, a deported alien may violate Section 1326(a) in three ways: he may (1) illegally reenter the United States, (2) attempt to illegally reenter the United States, or (3) be later found at any time in the United States. Defendant was charged with the last of these three means. Notably, an intent element, such as “knowingly,” is absent from the statute's language.

We first discussed at length the mens rea required by Section 1326 in United States v. Miranda–Enriquez, 842 F.2d 1211, 1212 (10th Cir.1988). ¹ Miranda–Enriquez did not expressly declare which provision of Section 1326(a) the Government alleged the defendant had committed—reentry, attempted reentry, or being found in the United States. But we did note the defendant was “permitted ... to cross the border [by border patrol agents but was].... arrested while driving his pickup truck in Albuquerque, New Mexico [,]” suggesting he was charged with being found in the United States. 842 F.2d at 1212. Regardless, we held “[t]o secure a section 1326 conviction the government must be prepared to show that the defendant's acts were intentional.” Id. Thus, “the government need not show that defendant willfully and knowingly engaged in criminal behavior, but only that the defendant's acts were willful and knowing—that the defendant willfully and knowingly reentered the United States and that he did so without the Attorney General's permission.” Id.

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