USA v. Ramirez-Valencia

• Decision Date: 05 November 1999
• Docket Number: No. 99-50060,RAMIREZ-VALENCIA,99-50060
• Citation: 202 F.3d 1106
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE, a.k.a. Rodolfo Ramirez-Valencia, a.k.a. Don Enrique, a.k.a. Jose Ramiro-Ramirez, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1106

202 F.3d 1106 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE RAMIREZ-VALENCIA, a.k.a. Rodolfo Ramirez-Valencia, a.k.a. Don Enrique, a.k.a. Jose Ramiro-Ramirez, Defendant-Appellant.

No. 99-50060

U.S. Court of Appeals for the Ninth Circuit

Submitted November 5, 1999¹

Decided January 31, 2000

COUNSEL: Michael J. McCabe, San Diego, California, for the defendant-appellant.

John D. Kirby, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. OPINION

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-98-01853-JTM Before: James R. Browning and A. Wallace Tashima, Circuit Judges, and Robert E. Jones,)² District Judge.

PER CURIAM:

I. OVERVIEW

Defendant-Appellant Jose Ramirez-Valencia pleaded guilty to being a deported alien found in the United States, in violation of 8 U.S.C. S 1326. The court sentenced him to a prison term of fifty-seven months plus three years of supervised release. Defendant argues that (1) the government should be estopped from prosecuting him where he relied on a form given him by the Immigration and Naturalization Service ("INS") which incorrectly stated that he would be guilty of a felony if he reentered the United States within five years, and (2) the court erroneously applied sentencing guidelines that were promulgated after he reentered the United States. We affirm.

II. FACTS AND PRIOR PROCEEDINGS

On September 8, 1986, defendant was convicted of transportation of illegal aliens in violation of 8 U.S.C.S 1324 (a)(2), and sentenced to a forty-two month prison term. After he served his custodial sentence the INS deported him on July 28, 1988. During deportation, defendant received a copy of INS Form I-294, which stated in part that:

Should you wish to return to the United States you must write this office or the American Consular Office nearest your residence abroad as to how to obtain permission to return after deportation. By law (Title 8 of the United States Code, Section 1326) any deported person who within five years returns with out permission is guilty of a felony. If convicted he may be punished by imprisonment of not more than two years and/or a fine of not more than $1000.00

The form was incorrect in that 8 U.S.C. S 1326 makes reentry following deportation illegal if an alien returns at any time without the express permission of the Attorney General. See 8 U.S.C. S 1326(a).

Sometime before September 1994, defendant reentered the United States, where he remained without permission. On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208. Among other changes, that Act reclassified the crime of alien smuggling as an aggravated felony. See 8 U.S.C. S 1101(a)(43). 973

On May 1, 1998, defendant was arrested and charged with alien smuggling. The government later dropped that charge and charged him with being a deported alien found in the United States. Defendant filed a motion to dismiss, asserting the defense of entrapment by estoppel. The court refused to allow the defense and denied the motion. Defendant pleaded guilty, but reserved his right to appeal the denial of his motion. The court applied the United States Sentencing Guidelines and, in light of defendant's prior conviction, which IIRIRA reclassified as an aggravated felony, gave defendant a sixteen level offense enhancement. Defendant filed a timely notice of appeal from the judgment and sentence imposed by the district court.

III. DISCUSSION

A. Standards of Review

The district court's decision to preclude a defendant's proffered defense is reviewed de novo. United States v. Moreno, 102 F.3d 994, 997 (9th Cir. 1999). The district court's interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999).

B. Merits

1. Entrapment by Estoppel

Defendant alleges that he returned to the United States after five years because INS Form I-294 assured him that he could do so legally, provided that he wait five years after being deported. Accordingly, he argues that the doctrine of entrapment by estoppel should have barred the government from charging him under 8 U.S.C. S 1326.

Entrapment by estoppel is the unintentional entrapment by an official who mistakenly misleads a person into a violation of the law. See United States v. Tallmadge , 829 F.2d 767, 773 (9th Cir. 1987). To succeed under this theory, defendant must do more than show that the government made "vague or even contradictory statements." Raley v. Ohio , 360 U.S. 423, 438 (1959). Rather, he must show that the government affirmatively told him the proscribed conduct was permissible, and that he reasonably relied on the government's statement. Id. A defendant's reliance is reasonable if "a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries." United States v. Lansing , 424 F.2d 225, 227 (9th Cir. 1970). See also United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991).

For example, in Tallmadge, this court held that the defendant, a convicted felon, could "not be prosecuted for purchasing a firearm when a federally licensed firearm dealer told him it was legal for him to make the purchase." 829 F.2d at 774. However, in Brebner, another case involving a convicted felon's purchase of a firearm, this court rejected defendant's entrapment by estoppel claim because there was "no evidence in the record that [the government agent] expressly told [defendant] that it was lawful for him to purchase the firearms." 951 F.2d at 1025.

In the present case, defendant relied on the statement in INS Form I-294 that "[b]y law (Title 8 of the United States Code, Section 1326) any deported person who within five years returns without permission is guilty of a felony." That misstatement is more like the one at issue in Brebner than in Tallmadge, because INS Form I-294 did not expressly tell defendant that it was lawful for him to return to the United States after five years. Even if defendant reasonably believed that returning after five years was not a felony, the form did not expressly tell him that returning without permission to the United States after five years was lawful. To the contrary, the form stated that defendant "must write this office or the American Consular Office nearest your residence abroad as to how to obtain permission to return after deportation." Furthermore, the form correctly cited to 8 U.S.C. S 1326, which prohibits unauthorized reentry at any time.

In United States v. Aquino-Chacon, 109 F.3d 936 (4th Cir. 1997), the Fourth Circuit found that Form I-294 provided insufficient legal basis for an entrapment by estoppel defense:

There was no active misleading here because Form I-294 did not affirmatively assure [defendant ] that reentry without permission was lawful if it occurred more than five years after his deportation. Instead, the form unequivocally provided that [defendant] was required to obtain permission prior to reentry. The language contained in Form I-294 that reentry without permission within five years of deportation is a felony neither states nor implies that reentry without permission after five years is permissible. Accordingly, we conclude that [defendant] could not have established the affirmative defense of entrap ment by estoppel.

Id. at 939. We agree with the Fourth Circuit's conclusion that,...