United States v. Armas-Gamez
| Decision Date | 20 October 2020 |
| Docket Number | Case No. 19-mj-11765-JLB-BAS-1 |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ENRIQUE ARMAS-GAMEZ, Defendant. |
Defendant was charged by Complaint with violating Title 8 U.S.C. § 1325(a)(1), a misdemeanor. (ECF No. 1.) Specifically, the Complaint alleged:
On or about December 7, 2019, within the Southern District of California, Defendant Enrique Armas-Gamez, an alien, knowingly and intentionally attempted to enter the United States of America with the purpose, i.e., conscious desire to enter the United States at a time and place other than as designated by immigration officers, and committed an overt act, to wit, crossing the border from Mexico into the United States, that was a substantial step towards committing the offense . . . .
(Id. (emphasis added).) The probable cause statement attached to the Complaint alleged that Defendant was arrested 35 yards north of the International Border Fence without proper immigration documents. (Id.) Post-arrest, after waiving his Miranda rights, the Complaint alleges Defendant "admitted to illegally entering the United States by climbing over the border fence." (Id.)
On December 16, 2019, Defendant pled guilty to the Complaint, without the benefit of a plea agreement, and was sentenced to time served. (ECF Nos. 6, 13.) At the time he pled guilty, the Magistrate Judge informed Defendant that the elements of the crime to which he was pleading guilty included:
(ECF No. 13, 6:12-7:7.) Defense counsel raised no objection to these elements.
As part of the factual basis for his plea, Defendant admitted that, although he was a citizen of Mexico, not the United States, he had walked from Mexico into the United States, hoping to successfully enter the United States without being intercepted by immigration officers, and, therefore, he intentionally picked a place to cross where there was no Port of Entry. (ECF No. 13, 9:1-10:7.) Again, no objection was raised as to this factual basis.
Defendant now appeals, raising three issues: (1) Rule 11 was violated because the Magistrate Judge omitted from the elements both the requirement that Defendant knew he was an alien at the time he entered and the requirement that he took a substantial step toward completing the offense; (2) Section 1325 is unconstitutional under Morales-Santana; and (3) Section 1325 violates the non-delegation doctrine and is void for vagueness. (ECF No. 15 ("Opening Brief").) The Government responds (ECF No. 16 ("Government's Response")), and Defendant replies (ECF No. 17).
"A defendant may appeal a magistrate judge's judgment of conviction or sentence to a district judge within 14 days of its entry." Fed. R. Crim. P. 58(g)(2)(B); see also 18 U.S.C. § 3402. "The defendant is not entitled to a trial de novo by a district judge." Fed. R. Crim. P. 58(g)(2)(D). Rather, the appeal's scope "is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Id.
Failure to raise a Rule 11 objection at the time of the plea means the court reviews the claimed omission for "plain error." United States v. Covian-Sandoval, 462 F.3d 1090, 1093 (9th Cir. 2006). "To grant relief under the plain error standard, [the court] must determine: (1) there was error, (2) that is plain, and (3) that affects substantial rights." Id. Even if those three requirements are met, the court should "exercise [its] discretion to correct the error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quotations omitted).
In ascertaining whether a Rule 11 error violated a defendant's substantial rights or the integrity of the proceedings, the court may look to all portions of the record. Id.; see also Henderson v. Morgan, 426 U.S. 637, 644 (1976) (). In the plain error analysis, the defendant bears the burden of demonstrating that substantial rights and the integrity of the judicial proceedings were affected. United States v. Minore, 292 F.3d 1109, 1119 (9th Cir. 2002); United States v. Dominguez-Benitez, 542 U.S. 74, 83 (2004). Thus, the defendant must show a reasonable probability that, but for this error, he would not have entered his guilty plea. Dominguez-Benitez, 542 U.S. at 76.
Defendant argues first that the Magistrate Judge erred in listed the elements because she failed to tell Defendant that the Government was required to prove that he took a "substantial step" toward committing the offense. "An attempt conviction requires evidence that a defendant intended to violate the statute and took a substantial step toward completing the violation.'" United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009) (quoting United States v. Meek, 366 F.3d 705, 720 (9th Cir. 2004)). "To constitute a substantial step, a defendant's actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." Id. at 1195 (quoting United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007)). "'Mere preparation' is not a substantial step." United States v. Soto-Barraza, 947 F.3d 1111, 1120 (9th Cir. 2020) (quoting Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th Cir. 2011)).
It is true that the elements listed by the Magistrate Judge in the Rule 11 colloquy omitted the requirement that the Government prove Defendant took a substantial step toward completing the violation. Instead, she simply said the Government was required to prove that Defendant attempted to enter the United States at a time and place other than as designated by an immigration officer. This was an error that was plain.
However, the error does not affect substantial rights nor does it seriously affect the fairness or integrity of the judicial proceedings. There was no question Defendant had taken a substantial step toward entering the United States. He was arrested in the United States after entering illegally. At the time he was arrested, he admitted that he had entered illegally "by climbing over the border fence." (ECF No. 1.) As part of his factual basis, at the time of his plea, he admitted that he had walked from Mexico into the United States and intentionally picked a place to cross where there was no Port of Entry. (ECF No. 13, 9:1-10:7.) The Complaint to which Defendant pled guilty alleged that Defendant had crossed the border from Mexico into the United States, which was "a substantial step towards committing the offense." (ECF No. 1.)
Because overwhelming evidence supported that Defendant took a substantial step towards completing the offense, even though he was not specifically told this was a requirement, it is not unfair to hold him to his guilty plea. See Minore, 292 F.3d at 1119. Furthermore, distinguishing the cases cited by defense counsel where the attorney objected to the Rule 11 proceedings, since there was no objection, it was Defendant's burden to show that he would not have pled guilty had he known of this element. He has not done so because he cannot do so. Defendant has not satisfied this Court that—when informed by the entire record—there is any probability of a different result had he been correctly informed of the elements. See Dominguez-Benitez, 542 U.S. at 85.
Since relief is not appropriate under the plain error standard, the appeal from the guilty plea on this ground is denied.
Next, defense counsel argues that Rule 11 was violated because the Magistrate Judge failed to inform Defendant that an element of the offense included that he knew, at the time he entered, that he was not a citizen of the United States. (See Opening Brief (citing United States v. Hernandez, 504 F. App'x 647 (9th Cir. 2013) (unpublished); United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005)).) Both Hernandez and Smith-Baltiher concerned whether a defendant could present a good faith, if mistaken, belief that he was a citizen at the time of his illegal entry in a Section 1326 prosecution. In each case, the Ninth Circuit ruled the defendant could raise such a defense because in a Section 1326 prosecution, the Government is required to prove that the defendant has the specific intent to enter the United States without permission. The fact that a defendant may have thought he had a legal right to enter could negate this intent.
As a preliminary matter, the Defendant in this case never expressed any confusion or good faith belief that he was a citizen of the United States at the time of entering the United States. When the Magistrate Judge asked Defendant whether he was a citizen of the United States, he forthrightly answered that he was not. (ECF No. 13.)
Second, the elements of Section 1325(a) are different than that of Section 1326(a). In a Section 1325(a) prosecution, the key is whether the defendant had the specific intent to enter the United States at a time and place other than as designated by immigration officers. In a Section 1326(a) prosecution, the key is whether the defendant had...
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