Opinion
Case No.: 3:19-mj-23193-FAG-BTM
05-11-2020
UNITED STATES OF AMERICA, v. ERASMO VAZQUEZ-SANCHEZ, Defendant.
ORDER OF AFFIRMANCE
Before the Court is Defendant Erasmo Vazquez-Sanchez's ("Defendant") appeal from his misdemeanor conviction and the resulting judgment imposed by the United States Magistrate Judge following Defendant's guilty plea to one count of improper entry by alien in violation of 8 U.S.C. § 1325(a)(1). The Court has jurisdiction to review the conviction and judgment pursuant to 18 U.S.C. § 3402. For the reasons discussed below, the Court affirms Defendant's conviction and the judgment entered thereon.
The Magistrate Judge had jurisdiction over the underlying matter pursuant to 18 U.S.C. § 3401(a).
BACKGROUND
On August 2, 2019, Defendant, who is a citizen of Mexico, was arrested by a U.S. Border Patrol agent approximately one-and-a-half miles west of the San Ysidro, California Port of Entry. (ECF No. 1, at 2.) On August 5, 2019, the Government filed a complaint charging Defendant with misdemeanor attempted improper entry by an alien in violation of 8 U.S.C. § 1325(a)(1) and Defendant made his initial appearance before the Magistrate Judge that same day. (ECF No. 5; see also ECF No. 4 (Detention Order).)
The Defendant was arrested "approximately 20 yards north of the United States/Mexico International Boundary." (ECF No. 1, at 2.)
On August 8, 2019, Defendant, represented by appointed counsel, appeared before the Magistrate Judge for a change of plea hearing, at which he pled guilty to one charge of improper entry of an alien in violation of 8 U.S.C. § 1325(a)(1). (ECF Nos. 7, 13.) Prior to Defendant's change of plea, the Magistrate Judge engaged Defendant in a colloquy and advised him of his constitutional rights and confirmed that he wished to waive those rights by pleading guilty. (ECF No. 13, at 3-6, 8.) The Magistrate Judge also advised Defendant of the elements of the misdemeanor offense of improper entry by alien under 8 U.S.C. § 1325(a)(1) and the maximum penalty thereunder. (Id. at 7-10.)
Specifically, the Magistrate Judge advised Defendant that the elements of his charge were:
First, defendant was at the time of the defendant's attempted entry into the United States an alien; that is, a person who is not a natural-born or naturalized citizen or national of the United States. Second, the defendant had the specific intent to enter the United States at a time and place other than designated by immigration officers. Third, the defendant also had the specific intent to enter the United States free from official restraint, meaning the defendant intended to enter without being detected, apprehended, or taken into custody by Government authorities so that he or she could roam freely in the United States of America. And fourth, defendant did something that was a substantial step towards committing the crime that strongly corroborated the defendant's intent to commit the crime.(Id. at 9-10.) Defendant's counsel objected to the Magistrate Judge's recitation of the charge's elements, however, arguing "there should be an element as to the alienage; that is, a mens rea of knowing." (Id. at 10-12.) After hearing the Government's response to Defendant's objection, the Magistrate Judge offered to allow the parties to submit written briefing on the issue of whether Defendant's knowledge of his alienage was a proper element of the § 1325(a)(1) charge. (Id. at 14-15.) Counsel for Defendant rejected this offer, however, insisting that Defendant "want[ed] to go forward with [his] plea and be sentenced to time served today." (Id. at 15-18.) To avoid further debate, the Government offered to include knowledge of alienage as a part of Defendant's plea "without [the Court] finding that this is actually a required element of the offense." (Id. at 18.) Ironically, when the Magistrate Judge expressed concerns about the Government's offer to include knowledge of alienage in the elements of the charge if it was not actually a proper element thereof, Defendant's counsel asserted that the Ninth Circuit's pattern jury instructions indicate that knowledge of alienage is not an element of § 1325(a)(1). (Id. at 18-19 ("I mean, the Ninth Circuit has a jury instruction on this. It's not in there. So, you know, to the extent that there's a word on the issue, the Ninth Circuit has indicated that it's not an element. But is there a binding decision on this Court or the District Court? No.").)
The Magistrate Judge ultimately concluded at the Rule 11 hearing that Defendant's knowledge of his alienage at the time of the offense was not an element of the § 1325(a)(1) charge and repeated the original four elements of the charge. (Id. at 19-20.) Defendant testified that he understood the Magistrate Judge's recitation of the elements of his charge. (Id. at 20.) Defendant further testified as to the factual basis of his charge, namely that he: (i) "crosse[ed] the border from Mexico into the United States at a place other than a designated Port of Entry"; (ii) was not "a citizen or national of the United States of America"; (iii) "intend[ed] to enter the United States at a place other than a designated Port of Entry"; and (iv) "intend[ed] to enter the United States without being detected, apprehended, or taken into custody by Government authorities so that [he] could roam freely in the United States[.]" (Id. at 20-22.) After finding that Defendant's plea was made knowingly, voluntarily, and upon a sufficient factual basis, the Magistrate Judge accepted Defendant's guilty plea and sentenced him to time-served. (Id. at 23-26.) The Magistrate Judge then informed Defendant of his right to appeal his conviction and sentencing. (Id. at 26-27.) That same day, the Magistrate Judge entered judgement (the "Judgment") against Defendant. (ECF No. 8.)
On August 13, 2019, Defendant timely filed his notice of appeal as to the Judgment. (ECF No. 10.)
STANDARD OF REVIEW
In the instant appeal, Defendant argues that the Judgment and his underlying conviction must be vacated because: (1) § 1325(a)(1) is unconstitutional because it violates the non-delegation doctrine; (2) § 1325(a)(1) is unconstitutionally vague; and (3) the Magistrate Judge violated Federal Rule of Criminal Procedure Rule 11(b)(1)(G) by failing to advise Defendant of the correct elements of his charged offense and therefore his guilty plea was not knowing and voluntary. (ECF No. 16, at 2.) The adequacy of the Magistrate Judge's recitation of the elements of a charged offense is reviewed de novo. See United States v. Pena, 314 F.3d 1152, 1155 (9th Cir. 2003) ("The adequacy of a Rule 11 plea colloquy is subject to de novo review." (citations omitted)). Because Defendant failed to raise his constitutional challenges prior to the instant appeal, they normally would be reviewed for plain error. United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012) ("We review the constitutionality of a statute as a matter of law de novo. . . . However, constitutional issues not originally raised at trial are reviewed for plain error." (citations omitted)); see also Fed. R. Civ. P. 52(b). Nevertheless, because Defendant's instant constitutional challenges fail regardless of the standard of review, the Court has utilized the more favorable de novo standard requested by Defendant.
Despite admitting that he "did not raise these constitutional issues below[,]" Defendant argues the Court should review them de novo. (ECF No. 16, at 5; ECF No. 19, at 6.) In support, Defendant cites United States v. Parker, 761 F.3d 986 (9th Cir. 2014) and United States v. Gilbert, 813 F.2d 1523 (9th Cir. 1987). Yet neither Parker nor Gilbert directly addressed the standard of review of constitutional challenges raised for the first time on appeal and therefore they are inapposite. See United States v. Corrales-Vazquez, 931 F.3d 944, 954 (9th Cir. 2019) ("Cases are not precedential for propositions not considered or for questions which merely lurk in the record." (internal quotations, citations, and alterations omitted)). In the alternative, Defendant argues that "the [G]overnment has waived its reliance on the plain-error doctrine by not briefing it." (ECF No. 19, at 6-7 (citing United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir. 2012).) While Defendant overstates the holding of Castillo-Marin, the Court acknowledges that the Government's briefing does not delineate the application or consequence of the plain error standard to the instant constitutional challenges. (See also ECF No. 18, at 9 ("Under any standard, . . . [Defendant] has not shown that § 1325(a)(1) is unconstitutional.").) --------
DISCUSSION
Section 1325(a)(1) provides that it is a misdemeanor for "[a]ny alien . . . [to] enter[ ] or attempt[ ] to enter into the United States at any time or place other than as designated by immigration officers[.]" 8 U.S.C. § 1325(a)(1). Defendant argues that § 1325(a)(1) violates the non-delegation doctrine because it improperly grants immigration officers "the discretion to determine a criminal statute's scope" without an "intelligible principle . . . to guide and constrain the exercise of [that] discretion." (ECF No. 16, at 16 (internal quotations and citations omitted)). Specifically, Defendant argues that § 1325(a)(1) permits any immigration officer to unilaterally designate the times and places where entry into the United States is lawful without "guidance . . . about what places they should designate for entry." (Id. at 17; see also ECF No. 19, at 5 ("[W]ith § 1325(a)(1), Congress delegated to 'immigration officers' a choice: they could designate for entry (1) physical ports; (2) geographic areas; or (3) something else entirely. Congress, however, did not provide immigration officers guidance in how they should make that choice.").)
Courts in this District have resoundingly rejected the non-delegation arguments presently raised by Defendant in the context of § 1325(a)(1). See, e.g., United States v. Nunez-Soberanis, 406 F. Supp. 3d 835, 839-40 (S.D. Cal. Aug. 30, 2019); United States v. Benito-Mendoza, 2020 WL 206183, at *3 (S.D. Cal. Jan. 13, 2020); United States v. Zeferino-De Jesus, 2020 WL 94373, at *7 (S.D. Cal. Jan. 7, 2020); United States v. Chavac-Boror, 2019 WL 5967969, at *1-3 (S.D. Cal. Nov. 12, 2019); United States v. Revolorio-Tambito, 2019 WL 5295086, at *1-3 (S.D. Cal. Oct. 17, 2019); United States v. Ramos-Moran, 2019 WL 4393670, at *1-2 (S.D. Cal. Sept. 13, 2019). Like the Court in Revolorio-Tambito, this Court finds "the type of delegation under § 1325(a) to be analogous to the delegation [upheld] in Gundy[,]" where "Congress determined that the [sex offender] registration requirements applied to pre-Act offenders but left the practical problems of implementation and when pre-Act offenders would be required to register to the Attorney General." Revolorio-Tambito, 2019 WL 5295086, at *2-3 (citing Gundy v. United States, ___ U.S. ___, 139 S. Ct. 2116, 2121 (2019)). Here, "Congress determined that there should be a proper location and procedure for an alien to seek admission to the United States." Id. at *2 (citing 8 U.S.C. § 1225(a)(3)). "Congress also established penalties for failing to follow those procedures." Id. (citing 8 U.S.C. §§ 1321-1330). "The details of where and when the ports of entry would be located was left to the executive agency responsible for staffing the facilities." Id.; see also 8 C.F.R. § 235.1 ("Application to lawfully enter the United States shall be made in person to an immigration officer at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this section."). Further, because "[p]orts of entry can only be designated or de-designated by the Secretary of Homeland Security subject to the Administrative Procedures Act[,] . . . [t]o interpret § 1325(a) to permit a border patrol agent to designate a portion of the border fence 'on a whim' is in direct conflict with Congress's clear statutory scheme." Revolorio-Tambito, 2019 WL 5295086, at *2 (citing 8 C.F.R. § 100.4(a)). Moreover, "[t]he practical issues of where and when ports of entry are open does not alter the scope of conduct considered criminal under § 1325(a)" because "[t]he type of conduct prohibited remains the same regardless of what physical piece of ground a port of entry is on." Id.; see also Zeferino-De Jesus, 2020 WL 94373, at *7 ("Closing ports or restricting hours of operation may make it more cumbersome for aliens to enter legally, but it does not create new or different criminal liability."). Defendant has therefore failed to demonstrate that § 1325(a)(1) violates the non-delegation doctrine.
Defendant's vagueness argument, which also relies upon his flawed assertion that § 1325(a)(1) allows "immigration officers [to] alter what is designated for entry without a moment's notice[,]" (ECF No. 16, at 25), has similarly been rejected by other courts in this district. See, e.g., Nunez-Soberanis, 406 F. Supp. 3d at 840-41; Benito-Mendoza, 2020 WL 206183, at *3; Zeferino-De Jesus, 2020 WL 94373, at *7-8; Chavac-Boror, 2019 WL 5967969, at *3-4; Revolorio-Tambito, 2019 WL 5295086, at *3-4; Ramos-Moran, 2019 WL 4393670, at *2-3. As previously discussed, Defendant's underlying assertion that an individual immigration officer can unilaterally (de)designate ports of entry is incorrect. Indeed, Defendant does not allege that his conviction - or any other conviction under § 1325(a)(1) - resulted from any individual immigration official's unilateral de-designation of a port of entry. See Hill v. Colorado, 530 U.S. 703, 733 (2000) ("[S]peculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications."). Thus, "[g]iven the formal procedures required to designate and de-designate a port of entry, . . . the Court finds that Section 1325(a)(1) is surely valid in the vast majority, if not all, of its intended applications and Defendant's hypothetical argument is insufficient to support a facial attack." Nunez-Soberanis, 406 F. Supp. 3d at 841. Further, Defendant has failed to otherwise demonstrate that § 1325(a)(1) "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or "authorizes or even encourages arbitrary and discriminatory enforcement." Hill, 530 U.S. at 732 (citations omitted). Defendant has therefore failed to demonstrate that § 1325(a)(1) is void for vagueness.
Finally, Defendant's argument that the Magistrate Judge violated Federal Rule of Criminal Procedure Rule 11(b)(1)(G), and therefore his guilty plea was not knowing and voluntary, is based on his argument that a defendant's knowledge of his alienage is an element of attempted improper entry in violation of § 1325(a)(1). (See ECF No. 16, at 28-34.) Like his constitutional challenges, Defendant's instant knowledge of alienage argument has been consistently rejected by other courts in this district. See, e.g., Nunez-Soberanis, 406 F. Supp. 3d at 841-45; Benito-Mendoza, 2020 WL 206183, at *3-4; Zeferino-De Jesus, 2020 WL 94373, at *8-9; Chavac-Boror, 2019 WL 5967969, at *4-5; Revolorio-Tambito, 2019 WL 5295086, at *4-7; Ramos-Moran, 2019 WL 4393670, at *4-5. Those courts specifically rejected Defendant's argument that the Supreme Court's decision in Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191 (2019), compels a finding that knowledge of alienage is an element of § 1325(a)(1). See, e.g., Zeferino-De Jesus, 2020 WL 94373, at *8 ("[U]nlike the statute at issue in Rehaif, the element of alienage in a § 1325 charge does not criminalize otherwise innocent conduct. The conduct that § 1325 criminalizes is attempting to cross the border outside the port of entry, free from official restraint. Any person, whether a United States citizen or an alien, who engages in such conduct violates the laws of the United States." (internal quotations and citations omitted)); see also 19 U.S.C. § 1459(a). This Court agrees with the reasoning of those prior decisions.
Similarly, at least one court has rejected Defendant's mistake-of-fact argument that, because a conviction for attempted illegal entry under § 1325(a)(1) requires proof that the defendant had the specific intent to commit the completed crime, this requires proof that the defendant knew he was an alien at the time of the offense. See Zeferino-De Jesus, 2020 WL 94373, at *8. This Court agrees with the reasoning of that court and repeats it here:
Defendant also argues that a defendant who believes he or she is a United States citizen at the time of the alleged offense cannot be found guilty of a violation of 8 U.S.C. § 1325(a)(1) because "'a defendant should be treated in accordance with the facts as he supposed them to be,' not as they actually are." ECF No. 23-1, at 24 (quoting United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1978)). Quijada does not stretch as far as Defendant would like. The issue in Quijada was whether the defendant, who had the intent to distribute cocaine, could avoid conviction because the substance he distributed was not in fact cocaine. Id. at 1255. A defendant can be convicted of attempted illegal entry under § 1325 if he or she has the specific intent to enter the country free from official restraint. United States v. Lombera-Valdovinos, 429 F.3d 927, 929 (2005). Quijada cannot be plausibly read to hold that a defendant could avoid conviction under § 1325 if he or she had the specific intent to enter the country free from official restraint, merely because the defendant had a mistaken belief that he or she was not an alien at the time of the offense.Zeferino-De Jesus, 2020 WL 94373, at *8.
Under this same reasoning Defendant's references to the Ninth Circuit's holding in United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005), which concerned in relevant part the propriety of excluding evidence that the defendant "reasonably believed he was a U.S. citizen when he attempted reentry" into the United States without consent in violation of 8 U.S.C. § 1326, are inapposite. United States v. Smith-Baltiher, 424 F.3d 913, 923 (9th Cir. 2005). In Smith-Baltiher, the Ninth Circuit held that it was improper to exclude such evidence because it could support a defense that would negate the scienter element of a violation of § 1326, namely that "the defendant had the purpose, i.e. conscious desire, to reenter the United States without the express consent of the Attorney General." Id. at 923-25. Defendant has made no similar showing that a lack of knowledge of his alienage at the time of the relevant offense would have affected the scienter elements of his charge under § 1325(a)(1), namely his "intent to enter the United States at a time and place other than designated by immigration officers . . . [or] enter the United States free from official restraint[,]" nor could he plausibly do so given his clear testimony at the Rule 11 hearing. (See ECF No. 13, at 9-10, 21.) Nor has Defendant demonstrated that the failure to require a showing of knowledge of alienage in connection with attempted illegal entry under § 1325(a)(1) will allow for the prosecution of inculpable conduct. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1193 (9th Cir. 2000) ("The reason for requiring specific intent for attempt crimes is to resolve the uncertainty whether the defendant's purpose was indeed to engage in criminal, rather than innocent, conduct." (citations omitted)). Accordingly, the Court concludes that knowledge of alienage is not an element of § 1325(a)(1) and therefore Defendant has failed to demonstrate the Magistrate Judge committed any error in their Rule 11 plea colloquy with Defendant.
CONCLUSION
Based upon the foregoing, the Court AFFIRMS Defendant's conviction by the Magistrate Judge and the Judgment (ECF No. 8) entered thereon.
IT IS SO ORDERED. Dated: May 11, 2020
/s/_________
Honorable Barry Ted Moskowitz
United States District Judge