USA. v. Ulibarry

• Decision Date: 13 July 1999
• Docket Number: D,GRACIDAS-ULIBARR,No. 98-50610,98-50610
• Citation: 192 F.3d 926
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFREDOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 926

192 F.3d 926 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFREDO GRACIDAS-ULIBARRY, Defendant-Appellant.

No. 98-50610

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 13, 1999--Pasadena, California

Filed September 27, 1999

Julie A. Blair, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Larry A. Sebastian, Special Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, District Judge, Presiding. D.C. No. CR-98-00254-HBT.

Before: Melvin Brunetti, Pamela Ann Rymer, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Rymer; Concurrence by Judge Silverman

RYMER, Circuit Judge:

Alfredo Gracidas-Ulibarry appeals his jury conviction and sentence for attempted reentry into the United States following deportation in violation of 8 U.S.C. S 1326. We must decide whether, as he contends, the jury should have been instructed that an attempt to reenter without the Attorney General's consent to the alien's reapplying for admission is a specific intent crime. The statute does not say so, and we (and all other circuits to consider the question save one) have held that reentry in violation of S 1326, which is a regulatory statute, is a general intent crime. We now join those who have also indicated that an attempt to reenter, which the statute treats on a similar footing with entry, likewise requires only general intent. As Gracidas-Ulibarry's other allegations of error do not require reversal, and we have jurisdiction pursuant to 28 U.S.C. S 1291, we affirm.

I

The morning after he was deported to Mexico through the Calexico Port of Entry, Gracidas-Ulibarry attempted to reenter the United States as a passenger in the rear seat of a vehicle at the San Ysidro Port of Entry. At primary inspection, Gracidas-Ulibarry was asked about his citizenship. He replied that he was a United States citizen but was unable to produce proof of identification. The vehicle was then referred to secondary inspection. At secondary inspection, Gracidas Ulibarry was again questioned about his citizenship. He stated that his name was "Arturo Cabral Rodriguez," and that he was a United States citizen born in Texas. He also explained that he lacked identification because he had been robbed two weeks earlier.

The immigration inspector ran a computer check using the name Gracidas-Ulibarry had given him. When the inspector returned to the car and confronted him with the information he had uncovered, Gracidas-Ulibarry admitted that he was a citizen of Mexico and that he had been deported previously. Gracidas-Ulibarry was taken to the prosecution unit, where another inspector ran additional immigration checks and conducted a fingerprint comparison to determine GracidasUlibarry's identity. After being read his Miranda rights, Gracidas-Ulibarry was questioned. He admitted that his real name was Alfredo Gracidas-Ulibarry, that he was a citizen of Mexico, that he had been deported the previous day, and that he did not have permission to reenter the United States.

An indictment was returned charging Gracidas-Ulibarry with attempted illegal reentry in violation of 8 U.S.C. S 1326(a) and (b)(2), and falsely and willfully representing himself to be a citizen of the United States in violation of 18 U.S.C. S 911. A jury convicted Gracidas-Ulibarry on both counts. At sentencing, Gracidas-Ulibarry requested a three level downward adjustment for acceptance of responsibility. The court instead awarded him a two-level adjustment and sentenced him to 84 months followed by three years of supervised release. Gracidas-Ulibarry timely appeals his S 1326 conviction and sentence.

II

Gracidas-Ulibarry first argues that the evidence was insufficient to support his conviction because the government failed to prove beyond a reasonable doubt that the Attorney General had not consented to his reapplication for admission to the United States, as S 1326(a)(2) requires. The government offered an Immigration and Naturalization Service (INS) Certificate of Nonexistence of Record to meet its burden, but Gracidas-Ulibarry contends that it was inadequate because it pertains only to INS records and shows only that the INS, and not the Attorney General, had failed to consent.

This argument is foreclosed by United States v. Blanco-Gallegos, 188 F.3d 1072 (9th Cir. Aug. 23, 1999). As we held there, "[b]ecause the INS is the Attorney General's agent for immigration matters and specifically for processing applications for permission to reapply for admission into the United States, the jury could reasonably infer from the lack of an application in the INS's A-File that no such application existed." Id. at 1075. Here, as in Blanco-Gallegos, the INS certified that a search of its automated and nonautomated records systems had revealed "no evidence of the filing of an application for permission to reapply for admission to the United States after deportation, or the granting of such permission, relating to Alfredo Gracidas-Ulibarry, also known as Alfredo J. Gracidas, born January 31, 1962, in Mexico." In addition, Gracidas-Ulibarry attempted reentry at 5:37 AM the morning after he was deported; the clear inference is that he had not received permission to reapply for admission. Based on these facts, the jury could conclude beyond a reasonable doubt that Gracidas-Ulibarry had not sought or received the Attorney General's consent to reapply for admission to the United States.

III

Gracidas-Ulibarry next argues that attempted reentry must be a specific intent crime because attempts are always specific intent crimes. For this reason, he submits, to prove attempted reentry after deportation it is necessary to prove that the defendant intended to reenter the United States and that he intended to reenter without the permission of the Attorney General. Thus, in his view, it was reversible error for the district court not to instruct that the government had to show that Gracidas-Ulibarry "intended to reenter the United States without the consent of the Immigration and Naturalization Service."¹

Section 1326 (a) provides that 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 re embarkation 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.

We do not disagree that most attempts are (and should be) specific intent crimes, whether or not the crime attempted includes an element of specific intent. See, e.g., United States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990). As we have explained, the reason is that

[a]ttempts, like aiding and abetting, involve a degree of uncertainty regarding the defendant's purpose to commit the underlying crime--an uncertainty that is not present in the case of a principal who actually commits the crime. Because of that uncertainty, it is reasonable to require proof of a specific intent that would not be required of one who completed the crime.

United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997). However, S 1326(a) is different from most ordinary crimes in that it not based on a common law crime but is instead "a regulatory statute enacted to assist in the control of unlawful immigration by aliens. This offense is a typical mala prohibita offense, and since it denounces the doing of an act as criminal, if a defendant voluntarily does the forbidden act, the laws implies the intent." Pena-Cabanillas v. United States, 394 F.2d 785, 788-89 (9th Cir. 1968).

By its terms, S 1326(a)"denounces the doing" of three acts as criminal: entering, attempting to enter, or being found in the United States after being deported without consent of the Attorney General to reapply for admission. It makes no distinction among the three, treating each as a completed crime.²

No intent is prescribed for any, and as we said in Pena Cabanillas, "[i]t would be absurd for this court to think that Congress inadvertently left `intent' out of Section 1326." Id. at 790; see also id. at 789 & n.4 (noting the absence of legislative history on whether Congress meant to include language inferring "intent" in S 1326, but also noting that such language was used in other sections of the Immigration and Nationality Act). Accordingly, we held in Pena-Cabanillas and have reaffirmed since "that the government does not need to allege specific intent under 8 U.S.C. S 1326." United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994) (considering "found in" prong); see also United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir. 1995) (recognizing "our longstanding rule that violation of S 1326 requires only a general intent to reenter the United States"); United States v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir. 1991) (repeating that "there is nothing in the statute to suggest that specific intent is an element of the offense").³ Only general intent is required.⁴

It is clear that an alien who has been deported and voluntarily reenters the United States without authorization has the intent required to support a S 1326 conviction for entry and for being "found in" the United States. See Ortiz-Villegas, 49 F.3d at 1437. The same is true for an alien who, like Gracidas-Ulibarry, was deported and voluntarily "attempts to enter" by approaching a port of entry and making a false claim of citizenship.⁵ Gracidas-Ulibarry was in a car in line to pass the check point (already miles across the border), falsely told two different immigration inspectors that he was a United States...