UNITED STATES of America, Plaintiff-Appellee, v. Herta WITTGENSTEIN, also known as Herta Hilscher, also known as Herta Christiensen, Defendant-Appellant, 163 F.3d 1164

TACHA, Circuit Judge. Defendant-Appellant Herta Wittgenstein appeals from her conviction of having been found in the United States without permission of the Attorney General after prior arrest and deportation in violation of 8 U.S.C. § 1326 (1994). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Background Ms. Wittgenstein, a native and citizen of Austria, has resided in the United States since August 13, 1964, when she entered as a non-immigrant visitor. For the bulk of these years, she has lived here illegally.

Not until April 13, 1992, did an immigration judge grant her status as a “lawful permanent resident.” Three years later, on April 19, 1995, the Immigration and Naturalization Service (“INS”) issued an Order to Show Cause why Ms. Wittgenstein should not be deported as an “alien who at any time after entry is convicted of two or more crimes involving moral turpitude....” 8 U.S.C. § 1251(a)(4) (1994). Ms. Wittgenstein had been convicted of a fraud involving more than $2500 and attempted tax evasion under New Mexico state law. See N.M. Stat. Ann. § 7-1-72; Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir.1997).

Shortly after an INS agent served Ms. Wittgenstein with the Order to Show Cause, she left the country, attempting to reenter the United States through Atlanta, Georgia, on May 16, 1995. At the Atlanta port of entry, an INS inspector noted that Ms. Wittgenstein was inadmissible into the United States. However, he “paroled” her into the country for “deferred inspection” at the Abuquerque, New Mexico INS office. When she presented herself in Abuquerque, Agent Godshall affirmed that he wrote “admitted” on Ms. Wittgenstein’s Form 1-94 (Departure Record). Ater Ms.

Wittgenstein returned to the United States, the deportation hearing resumed, and on January 26, 1996, the immigration judge ordered ' Ms. Wittgenstein deported. The INS issued a Warrant of Deportation the same day. On February 5, 1996, Ms. Wittgenstein filed a motion for reconsideration. Under INS regulations, the motion did not stay her deportation. On February 15, 1996, INS agents, along with a Santa Fe County deputy sheriff, went to Ms. Wittgenstein’s home to execute the Warrant of Deportation.

When she answered the door, an INS agent stepped inside, handcuffed her, told her he had a Warrant of Deportation for her arrest, and showed her the warrant. Ms. Wittgenstein protested that she had a motion pending before the immigration court and requested removal of the handcuffs so that she could call the judge. The INS agent obliged. Ultimately, Ms. Wittgenstein received a telephonic hearing before the immigration judge on her motion to reconsider. During the telephonic hearing, the immigration judge denied Ms. Wittgenstein’s motion and shortly thereafter faxed her written decision to Ms.

Wittgenstein’s residence. Ms. Wittgenstein requested permission to shower and change her clothes before the agents took her into custody. Again, the INS agents obliged. Eventually, the INS agents no longer heard movement in the bedroom. They knocked on the door and received no response. After ascertaining that Ms. Wittgenstein was no longer in the bedroom, the agents searched the entire house for her to no avail. In one declaration, Ms. Wittgenstein maintained that she had hid in her bedroom closet until the agents left.

In another affidavit, she claimed that she retreated to a room on the lower level until she felt calmer and to her “astonishment” the INS agents had left when she returned upstairs. The INS agents had no further contact with Ms. Wittgenstein until March 31, 1997, when they took her into custody for violating 8 U.S.C. § 1326 (1994). Although the INS agents did not find Ms. Wittgenstein until the end of March 1997, they periodically attempted to locate her.

In January 1997, responding to an inquiry by Albuquerque INS Special Agent Godshall, Atlanta INS Special Agent Holth investigated the possibility that defendant had flown from London, England to Atlanta, Georgia on January 25, 1997. The investigation revealed that an individual by the name of Herta Wittgenstein had made that flight and continued on to Albuquerque. No one with that name, however, had passed through United States Customs that day. Instead, someone using the name Herta Christiensen, with the same date of birth and nationality as Ms.

Wittgenstein, and coming from the same flight, presented herself to Customs. Agent Holth relayed this information, as well as information that Ms. Wittgenstein had lost something during the course of the flight that Delta Airlines later sent to her home in Santa Fe via Federal Express, to the INS office in Albuquerque on January 29, 1997. On February 13, 1997, INS Special Agent Lee requested a search warrant for Ms. Wittgenstein’s home in Santa Fe. The affidavit in support of the search warrant stated that Ms.

Wittgenstein, a native and citizen of Austria, was illegally in the United States and that an agent of the New Mexico Attorney General’s office had recently seen her in Santa Fe. Agent Lee also averred that he had passed her home and saw a Mercedes Benz registered to her parked at the residence. A United States Magistrate issued a warrant to search Ms. Wittgenstein’s home for her and documents relating to her alien-age or citizenship. Several INS agents and two Santa Fe Deputy Sheriffs executed the warrant on February 14, 1997. Although Ms.

Wittgenstein was not at home, the officers seized several documents indicating that she had left the United States on December 23, 1997, and returned on January 25, 1997. On March 31,1997, in response to tip from a friend of Ms. Wittgenstein’s, Sandoval County Deputy Sheriff Wiese arrested the defendant in Regina, New Mexico. Defendant requested that Deputy Wiese return to the house where the officers arrested her so that she could get her shoulder bag. Officer Wiese complied with this request. At the Cuba, New Mexico substation, Deputy Wiese searched the bag for weapons, removing two pocket knives.

When two INS agents arrived an hour later, Deputy Wiese gave them Ms. Wittgenstein’s passport, pocket knives, and shoulder bag. The INS agents transported her to Albuquerque where they stowed her belongings in a storage locker. The following day, they conducted a search of the bag, seizing several documents pertinent to her travels outside the country from December 1996 to January 1997. On April 16, 1997, a federal grand jury returned a one-count indictment against Ms.

Wittgenstein charging her with violating 8 U.S.C. § 1326 because she was found in the United States without the permission of the Attorney General after having been previously deported. After a two-day trial, a jury convicted Ms. Wittgenstein on August 5, 1997. The court sentenced her to eighteen months in prison followed by three years supervised release and imposed a $30,000 fine. On appeal, Ms.

Wittgenstein argues that the district court (1) erred in instructing the jury regarding the arrest element of 8 U.S.C. § 1326 and therefore erred in denying her motion for acquittal; (2) erred in denying her motion to dismiss in which she claimed that the immigration judge lacked jurisdiction to issue the deportation order against her and failed to properly advise her of her right to appeal; (3) erred in denying her motion to suppress evidence seized during a search of her residence and a later search of her shoulder bag at the time of her arrest; (4) erred in admitting evidence of prior bad acts; (5) erred in instructing the jury that it should consider prior sworn testimony of Agent Lee for impeachment purposes only; and (6) erred in imposing a $30,000 fine.

Discussion I. To find a defendant guilty of violating 8 U.S.C. § 1326 (1994), the government must prove beyond a reasonable doubt that defendant was an alien who had been arrested, deported, and thereafter found in the United States without the Attorney General’s consent for readmission. See 8 U.S.C. § 1326 (1994); United States v. Martinez-Morel, 118 F.3d 710, 712-13 (10th Cir.1997). Ms. Wittgenstein argues that the district court, over defense objections, erroneously instructed the jury as to the meaning of the arrest element.

She asserts that this violated her Fifth and Sixth Amendment rights and thus constitutes reversible error. Her argument presents two pertinent issues: whether the instruction given was legally incorrect; and if so, whether it constitutes harmless error.

After instructing the jury regarding the elements the government must prove, including the arrest element, the district court stated that “[t]he issuance of a Warrant of Deportation by the Immigration and Naturalization Service is a sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint.” Jury Instruction 8c. Ms.

Wittgenstein argues that the mere issuance of a warrant does not provide notice, and therefore cannot constitute an arrest. “We review the jury instructions de novo to determine whether, as a whole, the instructions correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standards.” United States v. Cecil, 96 F.3d 1344, 1347 (10th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997); see also Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1324 (10th Cir.1998).

In this case, the district court judge relied on the only Tenth Circuit ease to address the arrest element of 8 U.S.C. § 1326, United States v. Hernandez, 693 F.2d 996 (10th Cir.1982). In Hernandez, this court declared, “INS ... issued a Warrant of Deportation under § 243.2.... ‘That is sufficient restraint on liberty to constitute an arrest, even without custodial manhandling and physical restraint....’” 693 F.2d at 998 (citation omitted). Thus, an isolated read of the Hernandez opinion supports the accuracy of the district court’s jury instruction.

However, when Hernandez is read in light of the developed case law of the Fifth and Ninth Cii’cuit, which it implicitly incorporated, a different conclusion is reached. See id. (citing United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (Wong Kim Bo II), and United States v. Farias-Arroyo, 528 F.2d 904, 905 (9th Cir.1975)). Therefore, we find that the district court understated the legal standard for finding an arrest under 8 U.S.C. § 1326. The seminal case pertaining to the meaning of “arrest” in the context of immigration cases, United States v.

Wong Kim Bo, 466 F.2d 1298 (5th Cir.1972), and its progeny reveal that the arrest element’s primary concern is procedural fairness, and that the hallmark inquiry under the arrest element is whether the defendant had knowledge or notice of a final deportation order. See United States v. Bahena-Cardenas, 70 F.3d 1071, 1073 (9th Cir.1995) (asserting that “[wjithout notice, there can be no arrest, and no restraint on the liberty that an arrest connotes”); United States v.

Quezada, 754 F.2d 1190, 1192 (5th Cir.1985) (“[Njotice is critical ... for it insures that criminal sanctions are not imposed for reentry where the alien does not know that he has previously been officially deported.”). For example, in Wong Kim Bo, the Fifth Circuit declared: Congress might understandably hesitate to impose criminal sanctions for reentry where the alien does not know or realize that he has been officially ordered deported.

The arrest of an alien after an order of deportation has become final provides great assurance that the alien understands that he is being officially deported. 466 F.2d at 1304 (emphasis in original). Ms. Wittgenstein argues that the INS never properly served her with a valid Warrant of Deportation and, thus, never arrested her within the meaning of the statute.

While it is true that the courts in Wong Kim Bo, Bahena-Cardenas, and Quezada found that each defendant had been served with a Warrant of Deportation and therefore arrested, these opinions do not stand for the proposition that service is necessary where actual knowledge of a final deportation order exists. In fact, in each of those cases, as noted above, the court indicated that notice constituted the primary concern of the arrest element. Service merely provided the most ready proof that the defendants had notice that a final deportation order had issued against them.

Thus, properly read, these cases support the proposition that a defendant is arrested under 8 U.S.C. § 1326 as soon as he or she knows or receives notice that a final deportation order has issued against him or her. Consequently, we find that the district court’s jury instructions erroneously understated the legal standard for arrest under 8 U.S.C. § 1326.

The instruction should have stated that knowledge or notice of a final deportation order, whether by service of a Warrant for Deportation or otherwise, provides a sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint. Having found that the district court misstated the arrest element of an 8 U.S.C. § 1326 offense, we must assess whether the instruction nevertheless constitutes harmless error. This court will reverse for instructional error only where it is “prejudicial in view of the entire record.” United States v.

Cecil, 96 F.3d 1344, 1347 (10th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997). In other words, on a direct criminal appeal, we generally disregard those errors that do not affect a substantial right. See Fed.R.Crim.P. 52(a). Here, Ms. Wittgenstein argues that the erroneous jury instruction violated her Fifth and Sixth Amendment rights to a jury determination of guilt beyond a reasonable doubt as to every element of her offense. Under Rule 52(a), the government bears the burden of proving lack of prejudice. See United States v.

Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Ms. Wittgenstein correctly asserts that the Fifth and Sixth Amendment entitle those accused of serious crimes to an actual jury verdict of guilty beyond a reasonable doubt as to every element of the charged crime. See Sullivan v. Louisiana, 508 U.S. 275, 278-80, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). However, no constitutional violation presents itself in this case. A review of the record indicates that we may properly find harmless error without running afoul of Fifth and Sixth Amendment concerns.

The right to a jury trial as to every element of an offense may be waived when a defendant admits an essential element, cf. Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (finding jury instruction error in state trial involving an essential element of crime properly considered harmless and not violative of the Fourteenth Amendment Due Process Clause when defendant conceded the existence of the element), or has stipulated to facts establishing the essential element, see United States v. Mason, 85 F.3d 471, 472 (10th Cir.1996).

In such cases, an erroneous jury instruction relating to the admitted or stipulated element may constitute harmless error without implicating the Fifth and Sixth Amendments. Ms. Wittgenstein admitted on several occasions that she knew the immigration judge had issued a final order of deportation against her and that the INS had issued a Warrant for Deportation. For example, during the telephonic hearing conducted while INS agents were in her home on February 15, 1996, Ms.

Wittgenstein stated that the INS agent “has a warrant of deportation signed (coughing), I’m sorry— signed by District Director in El Paso on January 26.” Appellee’s Supp.App. at 6. She also stated' in a written declaration to the INS: [O]n a recent morning two Immigration Agents appeared at the door. “Get your passport and pack a small bag” they said, “we’re going to take you now to a detention facility in Texas and from there you’ll be deported within 72 hours.” Not willing to abandon everything I’ve worked so hard on at a moment’s notice, ... I decided to take the law into my own hands and pursue due process.

A closet in the house which had sheltered the children and me became a refuge until the agents left____ Id. at 8. Moreover, in a sworn affidavit, Ms. Wittgenstein admitted that INS officers told her on February 15, 1996, when they arrived at her house to take her into custody, that she was to be deported and showed her a Warrant for Deportation. Most telling, Ms. Wittgenstein further admits in her affidavit that the immigration judge denied her Motion to Reopen as well as her Request for a Stay.

In fact, she even admits receiving Judge Smith’s written decision via fax later that morning while the INS agents were still in her home. Although these various statements diverge on a few details such as whether the warrant was signed and where and whether she hid from the INS agents, nothing contradicts her ultimate admissions of knowledge of the final deportation order. In sum, Ms. Wittgenstein admitted having actual notice of the deportation order, thereby satisfying the arrest element of 8 U.S.C. § 1326. As a result, she has waived her right to a jury trial with respect to that element.

We therefore conclude that the district court’s erroneous jury instruction regarding the arrest element constituted harmless error and does not warrant reversal. II. At trial, Ms. Wittgenstein moved to dismiss, arguing that the immigration court violated her right to due process because it lacked jurisdiction to enter the deportation order and failed to properly advise her of her right to appeal. She asserts the district court erroneously denied this motion.

Whether the district court erred in failing to dismiss the indictment due to alleged violations of due process in the underlying immigration proceedings is a mixed question of law and fact that we review de novo. See United States v. Aranda-Hernandez, 95 F.3d 977, 980 (10th Cir.1996); cert. denied, - U.S. -, 117 S.Ct. 1314, 137 L.Ed.2d 477 (1997); United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir.1994).

To collaterally challenge an order of deportation in a prosecution under 8 U.S.C. § 1326, the defendant must prove that: (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d) (Supp.1996) (emphasis added). This

section comports with the constitutional standard for due process set forth in United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). As the Tenth Circuit has cogently stated: A defendant may collaterally challenge a deportation hearing in a 8 U.S.C. § 1326 prosecution if the defendant can show that the deportation hearing was fundamentally unfaii- and deprived the alien to the right of judicial review. In order to establish fundamental unfairness, the alien must show that he was prejudiced.

Meraz-Valeta, 26 F.3d at 998 (citation omitted) (emphasis added); see also Aranda-Hernandez, 95 F.3d at 980. In this case, the government does not dispute that Ms. Wittgenstein had exhausted all administrative remedies available to her. Thus, our analysis concerning the appropriateness of her collateral attack on the underlying deportation order 'is the same whether we conduct a statutory or constitutional analysis. To prevail, Ms. Wittgenstein must prove both that the deportation hearing deprived her of her right to judicial review and was fundamentally unfair. She can do neither.

First, this court heard the merits of her appeal and affirmed the immigration judge’s issuance of a deportation order. See Wittgenstein v. INS, 124 F.3d 1244, 1245 (10th Cir.1997). Thus, she certainly cannot show that the deportation proceedings deprived her of her right to judicial review. Additionally, Ms. Wittgenstein cannot show that the deportation hearing was fundamentally unfair. In attempting to establish fundamental unfairness, she first argues that the immigration judge lacked jurisdiction to order her deported.

Essentially, she asserts that because she left the country after the deportation hearings began, the immigration judge lost jurisdiction to order her deported. She argues that when she returned to the United States in May 1995, the INS merely “paroled” her into the country, never properly “admitting” her. Thus, she claims that the immigration court could only determine her admissibility and legal status in an exclusion hearing. We need not address this issue because no prejudice resulted from the immigration judge entering a deportation order against her rather than excluding her. Ms.

Wittgenstein admits that she would have been properly excluded from the United States had exclusion rather than deportation proceedings occurred. Regardless of whether Ms. Wittgenstein was deported or excluded, reentering the United States without having obtained the permission of the Attorney General is a violation of 8 U.S.C. § 1326. The only difference Ms. Wittgenstein can point to in this case between exclusion and deportation is that one who is excluded can apply for readmission into the United States after one year, while those who are deported must wait five. In this case, however, Ms.

Wittgenstein reentered the country just one month after deportation and did not apply for readmission at all. Thus, no prejudice resulted from deporting Ms. Wittgenstein instead of excluding her. Ms. Wittgenstein further argues that fundamental unfairness resulted from her deportation hearings because the immigration judge unconstitutionally failed to fully advise her as to her right to appeal. The record, however, belies this contention. In a colloquy encompassing six pages of the deportation hearing transcript, the immigration judge advised Ms.

Wittgenstein of her right to appeal and the procedures for doing so. At one point, the judge stated, “Should you not file an appeal, or should you file an appeal and your appeal be dismissed, the decision of the Court will become administratively final. The Immigration Service can then require that you submit yourself for deportation; report for deportation.” Deportation Hearing Tr. at 613. Towards the end of the discussion, Ms. Wittgenstein demonstrated her knowledge of the time frame in which she had to file notice of her appeal.

She stated, “If I understood you correctly, I have to file the notice of appeal by February 5th.” Id. at 618. The judge responded affirmatively and gave her the opportunity to ask additional questions regarding the appeal procedure. Thus, the immigration judge properly apprized Ms. Wittgenstein of her right to appeal. We find that no fundamental unfairness resulted from the deportation hearing. III. Ms. Wittgenstein also claims that the district court erred in failing to grant her motion to suppress evidence seized during a search of her residence.

She argues that the underlying affidavit lacked any basis for the magistrate to conclude that probable cause existed. We disagree. In determining whether an affidavit contains sufficient information to support a finding of probable cause for the issuance of a search warrant, this court, like the issuing judge or magistrate, must consider the totality of the circumstances and determine whether the affidavit established the probability that evidence of criminal activity would be located in the desired search area. See, e.g., Lawmaster v. Ward, 125 F.3d 1341, 1348 (10th Cir.1997); United States v.

Janus Indus., 48 F.3d 1548, 1552 (10th Cir.1995). We grant the magistrate’s determination of probable cause “ ‘great deference’ such that we ask only whether the issuing magistrate had a ‘substantial basis’ for determining probable cause existed.” Lawmaster, 125 F.3d at 1348; accord Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Glover, 104 F.3d 1570, 1577 (10th Cir.1997). The magistrate in this case issued a warrant to search 4 West Wildflower, Santa Fe, New Mexico for Ms. Wittgenstein and any documents relating to her alienage or citizenship.

Based upon our review of the affidavit in support of the search warrant, we conclude that, when read as a whole, it stated facts sufficient to support the magistrate’s determination of probable cause. The affidavit stated that a Special Agent of the New Mexico Attorney General’s office had recently seen Ms. Wittgenstein, whom he knew because he had arrested her in the past, in Santa Fe. Furthermore, the affidavit stated that on February 12, 1997, the affiant, INS Special Agent Lee, observed a vehicle registered to Ms. Wittgenstein parked in front of the residence. Finally, the affidavit also stated that Ms.

Wittgenstein had listed the 4 West Wildflower house as her address since 1986. Accordingly, we affirm the district court’s refusal to grant Ms. Wittgenstein’s motion to suppress the evidence obtained by the February 14, 1997, search of her home. Ms. Wittgenstein further argues that the district court erred in denying her motion to suppress evidence obtained through a search of her shoulder bag after her arrest.

The documents seized from her shoulder bag are similar to those seized during the search of her residence, both sets providing evidence that she traveled outside the United States and reentered the country in January 1997. Ms. Wittgenstein acknowledges that any error in admitting the evidence from one source would constitute harmless error unless the court should have suppressed evidence from both sources. Because we have upheld the search of her home, we need not confront the constitutionality of the shoulder bag search. IV. Ms.

Wittgenstein additionally argues that the court violated Federal Rules of Evidence 404(

b) and 403 by admitting testimony of Marybeth Boissonnault that Ms. Wittgenstein had cheated her in a car purchase transaction. Ms. Boissonnault was a former friend to Ms. Wittgenstein and witness for the government. We review the admission of evidence at trial for abuse of discretion. See, e.g., United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998); United States v. Wilson, 107 F.3d 774, 780 (10th Cir.1997). However, even if the trial court erroneously admits evidence, such error does not require reversal if it was harmless.

See Wilson, 107 F.3d at 785. Ms. Wittgenstein concedes that even if the trial court abused its discretion in admitting this testimony, it constitutes harmless error unless we reverse the district court’s denial of both suppression motions discussed above. Because we upheld the search of Ms. Wittgenstein’s residence and refused to reach the merits of the shoulder bag search, we deny relief on this claim. V. Ms. Wittgenstein next argues that the trial court committed reversible error when it limited the jury’s consideration of prior inconsistent statements to impeachment purposes only.

She claims that Agent Lee’s testimony regarding whether he “arrested” Ms. Wittgenstein on February 15,1997, changed from the time of his pretrial testimony because the government’s attorney informed him that “arrest” was an essential element of an 8 U.S.C. § 1326 violation. Although under Federal Rule of Evidence 801(d)(1)(a), prior inconsistent testimony given under oath is admissible as substantive evidence, we find no reversible error. Some dispute exists as to whether Agent Lee’s testimony was actually inconsistent. However, even if it were, Ms.

Wittgenstein suffered no prejudice as a result of the district court’s instruction. Given our above analysis and conclusion regarding the meaning of “arrest” under 8 U.S.C. § 1326, we find that even if the district court’s instruction constituted error, it was harmless. VI. Finally, Ms. Wittgenstein disputes the imposition of her $30,000 fine. We review the district court’s imposition of a fine within the range set by the Sentencing Guidelines for abuse of discretion. See United States v. Meuli, 8 F.3d 1481, 1487 (10th Cir.1993); United States v. Washington-Williams, 945 F.2d 325, 326 (10th Cir.1991).

We accept the district court’s findings of fact relating to the defendant’s ability to pay a fine unless clearly erroneous. See Washington-Williams, 945 F.2d at 326. After reviewing the record, we find no clear error in the district court’s factual findings and hold that the district court did not abuse its discretion in levying this fine against Ms. Wittgenstein. Conclusion Based upon the foregoing analysis and conclusions, we find that the district court committed no reversible error. Therefore, we AFFIRM the conviction of Ms. Wittgenstein under 8 U.S.C. § 1326. .

On September 30, 1996, Congress amended 8 U.S.C. § 1326 and omitted the arrest element. See 8 U.S.C. § 1326(a) (Supp.1996). With certain exceptions and subject to certain transitional rules inapplicable here, the amendment did not take effect until April 1, 1997. See Berehe v. INS, 114 F.3d 159, 161 (10th Cir.1997). The government charged Ms. Wittgenstein with violation of 8 U.S.C. § 1326 on March 31, 1997, and therefore, does not benefit from the amendment. . 8 U.S.C. § 1326(

d) applies to criminal proceedings, like this case, initiated after April 24, 1996. . In 1996, Congress amended the Immigration and Nationality Act and made the determination of whether an alien is admissible or deportable part of a single process called a removal proceeding. See 8 U.S.C. § 1229a (Supp.1996). Because this amendment did not take effect until April 1, 1997, it does not affect this case.