USA V. JUAN CABRERA, No. 21-50259 (9th Cir. 2023)
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Defendant was found guilty of attempted illegal entry pursuant to 8 U.S.C. Section 1325 and attempted illegal reentry pursuant to 8 U.S.C. Section 1326. On appeal, he argued that the district court violated his rights to a fair trial and sentence.
The Ninth Circuit affirmed. The panel held that the district court did not err in denying Defendant’s motion to suppress a statement he made to a Border Patrol agent about coming to the United States to find work. Defendant argued that the statement, which he made while between border fences, should have been suppressed because he was “in custody” and was not given a Miranda warning prior to his admission. The panel held that the stop here met the requirements of Terry, and the agent’s question about Defendant’s purpose for being in the United States did not exceed the scope of allowable inquiry during such a stop. The panel held that the district court did not abuse its discretion by excluding pursuant to Fed. R. Evid. 401 and 403, the testimony of Defendant’s only proposed witness, a Tijuana immigration attorney, whom Defendant intended to call as a lay witness to testify about the “factual situation in Tijuana in November 2019”. The panel wrote that neither the record nor the witness’s testimony could establish that Defendant knew of the long lines, and the district court’s concern about distracting the jury was reasonable. The panel held that the district court did not abuse its discretion in formulating the jury instructions on the requisite intent for a Section 1326 conviction.
Court Description: Criminal Law The panel affirmed Juan Carlos Cabrera’s 2021 convictions and sentence for attempted illegal entry and attempted illegal reentry under 8 U.S.C. §§ 1325 and 1326, and the district court’s judgment revoking supervised release arising from a prior conviction.
The panel held that the district court did not err in denying Cabrera’s motion to suppress a statement he made to a Border Patrol agent about coming to the United States to find work. Cabrera argued that the statement, which he made while between border fences, should have been suppressed because he was “in custody” and was not given a Miranda warning prior to his admission. Under United States v. Galindo-Gallegos, 244 F.3d 728, 730 (9th Cir.), as amended, 255 F.3d 1154 (9th Cir. 2001), the panel needed to determine whether Cabrera’s questioning was permissible pursuant to Terry v. Ohio, 392 U.S. 1 (1968), rather than whether he was “in custody” pursuant to Miranda. The panel held that the stop here met the requirements of Terry, and the agent’s question about Cabrera’s purpose for being in the United States did not exceed the scope of allowable inquiry during such a stop.
The panel held that the district court did not abuse its discretion by excluding pursuant to Fed. R. Evid. 401 and 403 the testimony of Cabrera’s only proposed witness, Tijuana immigration attorney Erica Pinheiro, whom Cabrera intended to call as a lay witness to testify about the “factual situation in Tijuana in November 2019”—specifically, the “enormous backlog of Central American migrants seeking asylum” due to the “metering” and “Remain in Mexico” policies in place at the time. Cabrera argued that the jury could have inferred from the testimony that he did not want to wait in line with thousands of other people seeking asylum at the port of entry. The panel wrote that neither the record nor Pinheiro’s testimony could establish that Cabrera knew of the long lines, and the district court’s concern about distracting the jury was reasonable.
The panel held that the district court did not abuse its discretion in formulating the jury instructions on the requisite intent for a § 1326 conviction. Cabrera argued that “additional verbiage” about “dual intent” confused and misled the jury, and required a jury to convict despite legal innocence. The panel wrote that Cabrera’s attempt to distinguish between a “fully formed intent” and “part of his intent” is an attempt to circumvent the rule in United States v. Argueta-Rosales, 819 F.3d 1149 (9th Cir. 2016), under which the government must show that a defendant intended to “go at large” at the time he physically crossed the border. The panel wrote that the instructions clearly explained that intent was to be measured at the point that Cabrera first entered into the United States, and were not misleading or confusing.
The panel held that the district court, at sentencing, did not err in calculating Cabrera’s criminal history score. Two of Cabrera’s prior convictions were § 1326 convictions from 2015 and 2017. The parties disputed whether the 2015 conviction should have been assigned three criminal history points, as the district court assigned, or two. Section 4A1.1(a) of the Sentencing Guidelines instructs that three points be added for each prior sentence of imprisonment exceeding one year and one month. The panel observed that to assign points to the 2015 conviction, the district court must have added to the original 12-month custodial sentence whatever length of time Cabrera received as a term of imprisonment imposed at the 2018 revocation of supervised release in the 2015 case. U.S.S.G. § 4A1.2(k)(1). The panel wrote that based on information in the 2015 record, the district court reasonably concluded that none of the parties were under the impression that the time Cabrera served toward his 2017 sentence could not also be included in his time-served sentence for violating his supervised release. The panel therefore held that, in determining whether the 2015 sentence was a term of imprisonment exceeding one year and month, the district court did not err by including 134 time-served days that overlapped with the time Cabrera served on his 2017 sentence, and in assigning three criminal history points to the 2015 sentence. Because the district court lacked authority to apply—and in fact did not apply—18 U.S.C. § 3585, the panel rejected Cabrera’s argument that the district court misinterpreted it.
The panel also held that because the 2021 convictions are valid, the district court did not abuse its discretion by revoking Cabrera’s supervised release based on those convictions.
Seventh Circuit Judge Hamilton concurred. He wrote separately with an observation about the Sentencing Guidelines dispute over how to count the length of Cabrera’s two “time-served” sentences. He wrote that the answer under the Guidelines has virtually nothing relevant to say to a sentencing judge about an appropriate sentence for Cabrera under the statutory purposes of sentencing: reflecting the seriousness of the offense, promoting respect for the law, providing just punishment for the offense, affording adequate deterrence of criminal conduct, protecting the public from further crimes by Cabrera, and providing him with needed correctional treatment.
Judge Collins concurred. He noted his general agreement with Judge Bybee’s separate opinion in Argueta-Rosales explaining why this court’s jurisprudence concerning the intent element of a § 1326 prosecution warrants re-examination by the en banc court. Judge Collins also noted his disagreement with the sentiments expressed in Judge Hamilton’s concurrence. He wrote that this court’s caselaw ensures that the Guidelines retain their critical role, even after United States v. Booker, 543 U.S. 220 (2005), in selecting the appropriate sentence.
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