United States v. Lopez-Alvarado
| Decision Date | 01 May 2020 |
| Docket Number | No. 18-14930,No. 18-14928,18-14928,18-14930 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAMON LOPEZ-ALVARADO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 6:09-cr-00248-PGB-KRS-1
D.C. Docket No. 6:18-cr-00080-PGB-KRS-1 Appeals from the United States District Court for the Middle District of Florida
Before WILSON, FAY and ANDERSON, Circuit Judges.
Ramón Lopez-Alvarado, a citizen of Mexico, appeals following his convictions and sentences for illegally re-entering the United States after deportation and failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"), and the revocation of his supervised release for committing those two offenses. We affirm.
In 2009, federal authorities charged Lopez-Alvarado with one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. CM/ECF for the M.D. Fla, no. 6:09-cr-00248-PGB-KRS-1 ("Lopez-Alvarado I"). In 2012, he pled guilty pursuant to a plea agreement. Based on the plea agreement's factual basis, he admitted that in 1998, he pled guilty in state court to three counts of committing a lewd act upon a 12-year-old child, in violation of Florida Statutes §800.04. He likewise admitted to being deported to Mexico after those convictions, but illegally re-entering the United States, which prompted the state court to find him guilty of violating probation. He admitted to being sentenced for the probation violation, serving part of that sentence, being deported again to Mexico, and returning to the United States later without permission.
The district court sentenced Lopez-Alvarado to 15 months of imprisonment, followed by five years of supervised release, which, in relevant part, prohibited him from violating any federal, state, or local law and required him to register, in any state in which he resided, with the state's sexual offender registry and/or SORNA. The district court entered a final judgment in Lopez-Alvarado I in December 2012. He appealed; we affirmed in July 2013 after granting counsel leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). United States v. Lopez-Alvarado, 523 F. App'x 718 (11th Cir. 2013). Lopez-Alvarado completed his custodial sentence and commenced his five-year supervised release term shortly thereafter. He was later deported.
In 2018, authorities charged Lopez-Alvarado with additional violations. First, in March 2018, the probation office sought to have him arrested, alleging, in part, that he had returned to the country without permission in 2018. Proceedings then commenced to revoke his supervised release in Lopez-Alvarado I.
In April 2018, a federal grand jury charged Lopez-Alvarado with: (1) illegally being present in the United States after being deported, in violation of 8 U.S.C. § 1326(a), (b)(2) (Count 1); and (2) knowingly failing to register as a sex offender under SORNA, in violation of 18 U.S.C. § 2250(a) (Count 2). CM/ECF for the M.D. Fla., no. 6:18-cr-00080-PGB-KRS-1 ("Lopez- Alvarado II"). Because Lopez-Alvarado previously had been convicted of failing to register as a sex offender and was on federal supervised release for that conviction, the probation office also filed a petition alleging that he had violated the conditions of his release by illegally returning to the United States.
Lopez-Alvarado appeared before a magistrate judge for a change of plea hearing as to Count 2 and pled guilty; the magistrate judge recommended the district court accept his plea. Both sides submitted notices that they had no objections to the recommendation and the district court accepted his guilty plea to Count 2.
Prior to trial on Count 1, the government moved to preclude Lopez-Alvarado from raising, as a defense, that he became a naturalized citizen by taking or signing an allegiance oath at a naturalization interview in 1995. The district court ultimately ruled that it would be a factual issue for the jury to decide whether it believed Lopez-Alvarado was invited to a ceremony to take the oath, whether the absence of immigration records indicated that never occurred, and whether he tookthe oath and became a citizen. When asked by the district court for comments, neither side objected to the court's ruling.
At the jury trial, Charles Adkins, a senior immigration officer for the United States Citizenship and Immigration Services ("USCIS"),1 testified for the government regarding Lopez-Alvarado's "alien file," also called an "A-file."2 Adkins identified a notice to appear for removal proceedings issued to him in August 1998; a December 1998 order from an Immigration Judge finding that Lopez-Alvarado was removable, "ineligible for relief from removal," and ordering him removed to Mexico; a warrant for his removal, based on a final order from the Board of Immigration Appeals, which demanded his physical removal from the United States; and an execution page showing he was removed from the country and walked across the border to Mexico on May 30, 2009. Adkins also testified regarding another time Lopez-Alvarado entered the country and was removed, with removal proceedings beginning around July 2012. Additionally, Adkins identified Lopez-Alvarado's birth certificate. Adkins testified that he searched USCIS's databases, which did not show that Lopez-Alvarado was ever a citizen or naturalized, and, if he had applied for naturalization and been naturalized, thedatabases would have had a document reflecting such. On cross-examination, Adkins testified that in 1995, a person applied for naturalization, afterwards they were interviewed, and, after the interview, the application was approved, denied, or "continued." Adkins also testified, in part, that applicants did not take the allegiance oath at the naturalization interview, rather only signed a document acknowledging they understood it and, if approved to proceed to the swearing in, an applicant received a letter telling them where and when to appear to take the oath.
After the government rested its case-in-chief, Lopez-Alvarado moved for a judgment of acquittal, arguing that the government had failed to show he was an alien; the district court denied the motion. When the district court began discussing the proposed jury instruction for Lopez-Alvarado's defense, Lopez-Alvarado objected to putting any burden of proof for the defense on him; however, he agreed with the court that he had advanced an affirmative defense.
In his defense, Lopez-Alvarado called Ana Pardo, an Immigration and Naturalization Service ("INS") official from the Orlando office in 1995-96. She testified that in the building that INS used at the time, if they conducted naturalization ceremonies, they used the INS's judge's chambers. She stated that they filled out a processing worksheet as the case was worked on and identified Lopez-Alvarado's 1995 application and processing form. She said that, at theinterview, the processing sheet would be filled out with information like sex and marriage status; the "C" in the action line of the processing sheet meant she continued the case and she would have filled that out at the time of his interview on December 6, 1995. She testified that an allegiance oath was not administered during the interview, but they would give people an oath to tell the truth in their application. The date of the final action in his case was March 12, 1996, and it was her signature on the sheet; however, she did not have any independent recollection of the events with Lopez-Alvarado, including denying his application. She also testified that except for possibly military members going overseas on orders, ceremonies did not occur right after the interview; she did not remember any ceremonies taking place the same day as an interview, nor did she give the allegiance oath. Pardo also described what a swearing-in ceremony conducted by INS looked like, specifically that groups of 50 up to 1,000 would be brought in, there would be guest speakers, often family and friends would attend, the oath would be given, and the naturalization certificates were handed out at the end of the ceremony.
Lopez-Alvarado took the stand. He admitted that he was a convicted felon. As to his 1995 application, he testified that the first time he met with an INS official was in February 1995; at that time, Pardo questioned him under oath and afterwards asked where he wanted to take his citizenship oath. He was told tocome back in December 1995 to take his oath. He said when he arrived, several officers and Pardo were present; on cross-examination, he said "many people" were at the ceremony, but they were INS officers and, if others were there to take the oath, he did not know because he took the oath quickly and left. He said that after the oath was administered, officials marked where he should sign that he had taken the oath; on cross-examination, he stated that the oath he signed was the one on his A-file processing sheet. He also said that they did not give him a certificate on that date; he was told he would get a notice about picking it up, but he never picked it up for various reasons.
After the defense rested, it renewed its motion for judgment of acquittal based on the government's failure to make out a prima facie case. The district court denied the motion. It also explicitly found that Lopez-Alvarado had committed perjury, stating
At the charge conference, the court stated that it wanted to make it clear to the jury that the government did not have to disprove that the naturalization ceremony took place, it only had to prove the elements of the offense; to "avoid confusion," it wanted to add that Lopez-Alvarado had the burden to prove his affirmative defense. Lopez-Alvarado objected to having the burden; however, he agreed that, if he did, it was by a...
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