Docket Nº:0150064
Case Date:April 03, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit





UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO VELASCO-MEDINA, Defendant-Appellant.

No. 01-50064; D.C. No. CR-00-02460-JNK


Appeal from the United States District Court for the Southern District of California

Judith N. Keep, Chief Judge, Presiding

Argued and Submitted April 3, 2002—Pasadena, California

Filed August 12, 2002

Before: Harry Pregerson, Stephen S. Trott, Circuit Judges, and James M. Fitzgerald,* District Judge.

Opinion by Judge Trott

*The Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation.


Gary P. Burcham, San Diego, California, for the defendant-appellant.

Kyle W. Hoffman, United States Attorney’s Office, San Diego, California, for the plaintiff-appellee.


TROTT, Circuit Judge:

Pedro Velasco-Medina ("Velasco-Medina") appeals his jury conviction and sentence for attempted reentry after deportation, in violation of 8 U.S.C. § 1326, and his sentence for falsely representing himself as a United States citizen, in violation of 18 U.S.C. § 911. Velasco-Medina offers two grounds for overturning his conviction for attempted reentry: (1) his indictment was defective because it failed to allege specific intent, and (2) the underlying deportation proceeding violated his due process rights under the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). Velasco-Medina argues also that we must vacate his forty-six month sentence for attempted reentry because his second degree burglary conviction preceding his deportation was not an aggravated felony under California law and, therefore, the district court erred in imposing a sixteen-level sentencing enhancement based on this earlier conviction. Finally, Velasco-Medina argues that the district court erred in denying him a three-level downward adjustment at sentencing for acceptance of responsibility. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm in all respects.


Velasco-Medina is a Mexican citizen who was admitted to the United States as a lawful permanent resident in 1967. He lived most of his life in Southern California. His mother, ex-wife, and daughter — all United States citizens — continue to live in this country. Between 1981 and 1996, Velasco-Medina was convicted of at least nine crimes involving drug and alcohol-related offenses, spousal abuse, and grand theft. These years were also checkered with numerous arrests for drug use and assault.

In June 1996, Velasco-Medina pleaded guilty to second degree burglary, petty theft with a prior, and being under the influence of a controlled substance. For these offenses, Velasco-Medina received a one year prison sentence and three years of probation.1 Under the laws then in effect, an alien was deportable upon conviction for any "aggravated felony." See 8 U.S.C. § 1251 (a)(2)(A)(iii) (1995) (redesignated as 8 U.S.C. § 1227(a)(2)(A)(iii)). At that time, a burglary conviction qualified as an "aggravated felony" if the imposed prison term was at least five years. See 8 U.S.C. § 1101(a)(43)(G) (1995). Because Velasco-Medina received only a one-year sentence, his June 1996 burglary conviction did not qualify as an "aggravated felony" and did not make him deportable.

Velasco-Medina’s burglary conviction was sandwiched between the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546. Section 440(d) of AEDPA, which took effect on April 24, 1996, rendered aliens convicted of aggravated felonies, regardless of the length of their sentence, ineligible for discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act ("INA").2 See 110 Stat. 1277 (amending 8 U.S.C. § 1182(c) (repealed 1996)). AEDPA’s changes, however, did not affect Velasco-Medina because his June 1996 burglary conviction was not deemed an "aggravated felony" for deportation purposes under the then-current law.

1Velasco-Medina later violated his probation and received a three-year sentence for the burglary conviction. 2Prior to its repeal by IIRIRA, section 212(c) gave the Attorney General discretion to grant relief from deportation to a lawful permanent alien who had resided in the United States for at least seven consecutive years and who had not served five or more years in prison for one or more aggravated felony convictions. See 8 U.S.C. § 1182(c) (1995).

Section 304 of IIRIRA, which went into effect on April 1, 1997, repealed INA § 212(c), 8 U.S.C. § 1182(c), replacing it with a procedure called "cancellation of removal." See 110 Stat. 3309-597, codified at 8 U.S.C. § 1229b. Consistent with AEDPA, IIRIRA § 304 provided that lawful permanent residents who had been convicted of an aggravated felony were ineligible for cancellation of removal (formerly § 212(c) relief). See 110 Stat. 3309-594, codified at 8 U.S.C. § 1229b(a). Of particular relevance to Velasco-Medina’s appeal, § 321 of IIRIRA expanded the definition of "aggravated felony" by reducing the prison sentence required to trigger "aggravated felony" status for burglary from five years to one year. See 8 U.S.C. § 1101(a)(43)(G) (1996). The changes wrought by IIRIRA recharacterized Velasco-Medina’s burglary conviction as an aggravated felony and made him eligible for removal, without the possibility of cancellation of removal.

On January 26, 2000, the INS commenced deportation proceedings against Velasco-Medina. On March 6, 2000, the INS served him with a notice to appear, which asserted that he was deportable because he had been convicted of an aggravated felony. See 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). At Velasco-Medina’s initial hearing, he accepted the Immigration Judge’s ("IJ") recommendation to continue the proceedings in order to consult with an attorney. At the subsequent hearing, the IJ determined that Velasco-Medina’s burglary conviction constituted an aggravated felony and that Velasco-Medina was not eligible for any waiver or relief from deportation. Consequently, the IJ issued an order removing Velasco-Medina to Mexico and advised Velasco-Medina of his right to appeal the removal order. Velasco-Medina waived his appeal, and was removed that same day.

On June 10, 2000, Velasco-Medina attempted to reenter the United States from Mexico through the Otay Mesa, Califor-nia, Port of Entry as a passenger in another’s car. During the primary inspection, Velasco-Medina told the immigration inspector that he was a United States citizen by virtue of his birth in Los Angeles, California. The inspector suspected that Velasco-Medina was lying and referred him to a secondary check point, where an immigrant background check revealed Velasco-Medina’s true immigration history. Confronted with the truth, Velasco-Medina admitted that he was a Mexican citizen, that he had been deported only days earlier, and that he had not received permission to reenter the country.

In August 2000, a grand jury returned a two-count indictment against Velasco-Medina, charging him with attempted reentry after deportation, in violation of 8 U.S.C. § 1326 (Count One), and making a false claim to United States citizenship, in violation of 18 U.S.C. § 911 (Count Two). Velasco-Medina filed a motion in limine to dismiss the indictment because the retroactive application of AEDPA and IIRIRA in his earlier deportation hearing impermissibly denied him the opportunity for discretionary relief from deportation under § 212(c). Finding no due process violation in the underlying deportation procedures, the district court denied his motion. At no time before or after trial did Velasco-Medina move to dismiss Count One of the indictment for failure to allege specific intent to enter the United States after deportation. After a two day trial, the jury convicted him on both counts.

At sentencing, the district court determined that Velasco-Medina’s 1996 second degree burglary conviction constituted an aggravated felony and consequently enhanced his offense level sixteen levels. See U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2L1.2(b)(1)(A) (2000).3 The district court denied Velasco-Medina’s request for a downward adjustment under U.S.S.G. § 3E1.1 for acceptance of responsibility. After

3All references in this opinion to the Sentencing Guidelines are to the November 1, 2000 version — the version in effect at the time of Velasco-Medina’s sentencing. See U.S.S.G. § 1B1.11(a); United States v. Steffen, 251 F.3d 1273, 1277 (9th Cir. 2001).

departing five levels to account for the comparatively minor nature of Velasco-Medina’s aggravated felony, the district court sentenced him to forty-six months in custody and three years of supervised release for Count One, and to thirty months in custody and one year of supervised release for Count Two, to run concurrently.

Velasco-Medina timely appeals his conviction for attempted reentry, the imposition of the sixteen-level enhancement, and the denial of a downward adjustment for acceptance of responsibility.


I Jurisdiction Over Count One of the Indictment (8 U.S.C. § 1326)

In United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (en banc), we held that "the crime of attempted illegal reentry into the United States includes the common law element of specific intent." Gracidas-Ulibarry, 231 F.3d at 1190. ("Specific intent" denotes the purpose or conscious desire to cause the particular offense. Id. at 1196.) Thus, a conviction for attempted illegal reentry under 8 U.S.C. § 1326 requires proof that "the defendant had the purpose, i.e., conscious desire, to reenter the United States without the express consent of the Attorney General." Id.; see also United States v....

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