USA v. Francisco Romero-Caspeta

Filing

OPINION and JUDGMENT filed: The judgment of the district court is AFFIRMED. Decision for publication. Alice M. Batchelder, Chief Judge; Richard Allen Griffin, Circuit Judge; Robert Holmes Bell (AUTHORING), U.S. District Judge for the Western District of Michigan, sitting by designation.

Case: 12-2690

Document: 006111978392

Filed: 02/28/2014

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0042p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 12-2690
v.
>
,
FRANCISCO ROMERO-CASPETA,
Defendant-Appellant. N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cr-20376-1—Marianne O. Battani, District Judge.

Decided and Filed: February 28, 2014
Before: BATCHELDER, Chief Judge, GRIFFIN, Circuit Judge; BELL, District Judge.*
_________________
COUNSEL
ON BRIEF: George B. Washington, SCHEFF, WASHINGTON & DRIVER, P.C.,
Detroit, Michigan, for Appellant. Robert Metzgar, UNITED STATES ATTORNEY’S
OFFICE, Detroit, Michigan, for Appellee.
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OPINION
_________________
BELL, District Judge. Defendant-Appellant Francisco Romero-Caspeta appeals
his conviction by a jury of one count of Illegal Reentry of Removed Alien, 8 U.S.C.
§ 1326(a). Appellant challenges the district court’s denial of his motion for a judgment
of acquittal and its inclusion of a jury instruction that, he maintains, undermined his
defense. A single issue is before the Court: after the expiration of the five-year period
during which a removed alien must obtain express consent of the Attorney General
before reentering the United States, may the removed alien reenter the United States

*

The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.

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without express consent without violating 8 U.S.C. § 1326(a)? This question has been
answered by our sister circuits in the negative, and today, for the reasons that follow, we
join them. We therefore affirm Appellant’s conviction.
I.
Appellant is a Mexican citizen born in 1973. On March 16, 1999, he attempted
to enter the United States at a border crossing in Texas using a border pass issued to
another individual. On March 17, 1999, he was sentenced to 90 days of custody and
2 years of supervised release for violating 8 U.S.C. § 1325(a)(3). This sentence was
suspended and he was escorted across a bridge back to Mexico. He was given an Order
of Removal instructing him that he was prohibited from re-entering the United States for
a period of five years and that if he wished to re-enter the United States he would first
need to obtain the permission of the Attorney General. The Notice further included the
following warning, in bolded, offset text:
WARNING: Title 8 United States Code, Section 1326 provides that it is
a crime for an alien who has been removed from the United States to
enter, attempt to enter, or be found in the United States without the
Attorney General’s express consent. Any alien who violated [sic] this
section of law is subject to prosecution for a felony.
In April of 2012, Appellant was convicted of a traffic offense in Detroit, Michigan, at
which time U.S. Immigration and Customs Enforcement agents detained him.
Appellant was charged with unlawful reentry under 8 U.S.C. § 1326(a), which
required the government to prove that he was (1) an alien; (2) who had been removed;
(3) and reentered the United States; (4) without the consent of the Attorney General.
United States v. Mendoza-Mendoza, 239 F. App’x 216, 217 (6th Cir. 2007). At trial,
Appellant did not dispute the underlying facts of the government’s case. Rather, he
argued that once more than five years had elapsed since his removal, § 1326(a), when
read in conjunction with 8 U.S.C. § 1182(a)(9)(A)(i) and (iii), did not require him to
obtain the advance consent of the Attorney General prior to reentry. Appellant moved
for judgment of acquittal on this basis. The district judge denied his motion. The district

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judge also instructed the jury, over Appellant’s objection, that at the time he was found
in the United States he “. . . still need[ed] the permission of the Attorney General to reenter the United States.” The jury returned a guilty verdict.
II.
We review appeals from motions for a judgment of acquittal de novo. United
States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003). We review a claim of error in
instructing the jury by analyzing whether the instruction, considered as a whole, “fails
accurately to reflect the law,” is “misleading,” or gives an “inadequate understanding of
the law.” United States v. Wuliger, 981 F.2d 1497, 1501 (6th Cir. 1992) (citation
omitted).
Appellant does not contest that he is an alien who was removed from the United
States and who reentered without the consent of the Attorney General. His sole
contention on appeal is that § 1326(a)(2)(B) provides a defense to criminal liability
under § 1326(a): namely, that because Appellant’s order of removal specified a five-year
period during which he was required to seek the Attorney General’s consent to reenter
the United States, he was “not required to obtain such advance consent under this
chapter or any prior Act” after that period expired. 8 U.S.C. § 1326(a)(2)(B). Appellant
specifically points to 8 U.S.C. § 1182(a)(9)(A)(i) and (iii), arguing that this section says
“that the advance consent of the Attorney General is only needed for five years after the
alien’s removal—period, stop, end of sentence.”
While this Court has never explicitly construed the effect of the five-year
exclusionary period of § 1182 on § 1326, the Fourth and Fifth Circuits have. In United
States v. Bernal-Gallegos, 726 F.2d 187 (5th Cir. 1984), the Fifth Circuit examined the
same issue before this Court today. Noting that the legislative history of § 1182 did not
show Congressional intent to amend § 1326 and the principle disfavoring judicial
amendment of a statute, the court held that § 1182 does not impose a limit on § 1326.
Id. at 188. Specifically, the court held that under § 1326, a removed alien was criminally
liable if he did not have the express consent of the Attorney General at any time after his
removal, regardless if the five-year exclusionary period had expired. Id. The court

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explained that § 1182 would only serve as a defense to § 1326 liability if, after the
expiration of the five-year exclusionary period, the alien had obtained a visa, with or
without the express consent of the Attorney General. Id.
Applying this reasoning to a similar case, the Fourth Circuit held that the mere
fact that a visa might be available to a removed alien under § 1182 after the five-year
exclusionary period expires is not a defense to § 1326 liability if the alien has not
actually applied for such a visa. United States v. Joya-Martinez, 947 F.2d 1141, 1144
(4th Cir. 1991). Appellant attempts to distinguish these cases on the basis that these
defendants were both arrested for crimes in the United States and then deported, whereas
he was found to be inadmissible on the basis of fraud and prevented from ever entering
the country. Our sister circuits’ reasoning, however, did not rely on why the aliens in
those cases were removed. The reasoning rather focused on the interplay between two
provisions of Title VIII of the United States Code. We find such reasoning persuasive.
We hold, therefore, that 8 U.S.C. § 1326 “continues to articulate all the elements
necessary to prove a violation,” including the requirement that a previously removed
alien obtain the Attorney General’s advance consent before reentry occurs, unless such
consent is not required. Joya-Martinez, 947 F.2d at 1144. Contrary to Appellant’s
argument, 8 U.S.C. § 1182(a)(9)(A)(i) and (iii) do not eliminate the requirement that a
removed alien seeking reentry must first seek the approval of the Attorney General
before actually reentering. Rather, § 1182(a)(9)(A) merely sets forth criteria for
admission of a previously removed alien. Under § 1182(a)(9)(A)(i), a previously
removed alien is categorically inadmissible for the first five years after such removal,
but can nonetheless seek readmission with the express consent of the Attorney General
during that time period under § 1182(a)(9)(A)(iii). Section 1182 does not give a
previously removed alien carte blanche to reenter the United States at his leisure five
years or more after he has been removed without the express consent of the Attorney
General.
Applying this holding to the facts of the instant case, we conclude that Appellant
is not entitled to relief. None of the facts underlying Appellant’s prosecution are

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disputed. The arguments before this Court are solely legal in nature. The Court has
determined that under the law, Appellant was required to obtain the express consent of
the Attorney General prior to entering the United States in order to have a defense to
prosecution under 8 U.S.C. § 1326(a). Because it is uncontested that Appellant was not
in the United States legally, he has no defense as a matter of law. Therefore, under de
novo review, we hold that the district court correctly denied Appellant’s motion for
judgment of acquittal. Consequently, we also hold that the contested jury instruction
accurately reflected the law.
III.
For the foregoing reasons, Appellant’s arguments that he has a cognizable
defense to his conviction under 8 U.S.C. § 1326(a) are without merit. Having conducted
a de novo review of the facts and law, we affirm the judgment of the district court.