UNITED STATES of America, Plaintiff-Appellee, v. Miguel LOMBERA-VALDOVINOS, Defendant-Appellant, 429 F.3d 927

FISHER, Circuit Judge: Defendant-appellant Miguel Lombera-Valdovinos (“defendant”) principally appeals the district court’s denial of his motion for acquittal after a jury returned a guilty verdict for attempted illegal reentry. We have jurisdiction under 28 U.S.C. § 1291. We consider the question of whether it is possible to convict a previously deported alien for attempted illegal reentry into the United States under 8 U.S.C. § 1326 when he crosses the border with the intent only to be imprisoned.

We conclude that it is not, because attempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. The government, operating under a misconception about the meaning of official restraint, failed to introduce evidence to support a finding of such intent, so we must reverse. I. Background At trial, Border Patrol agent Guillermo Avila testified to the following facts. On October 29, 2003, Avila was patrolling the U.S.-Mexican border.

He sat in a marked border patrol vehicle between the “primary fence,” marking the actual U.S./ Mexican border, and the “secondary fence,” located about 100 feet north of the primary fence. With binoculars, Avila saw the defendant and four or five others standing on the Mexico side of the border, about 200 yards away from Avila. Avila then looked away for about 15 seconds; when he turned back, he saw the defendant, alone and now on the U.S. side of the primary fence, walking directly toward him. When the defendant continued to walk toward Avila, Avila drove toward him.

When they met, the defendant stated, “I want to see an immigration judge,” admitted to being a citizen of Mexico and, when asked if he had any legal basis for being present in the United States, answered, “No.” He also said that he “wished to go back to jail.” Avila arrested and searched the defendant. The defendant has been deported several times on previous occasions. II. Discussion ‘We review de novo the district court’s denial of a Rule 29 motion for judgment of acquittal.

This standard requires us to ‘review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Ruiz-Lopez, 234 F.3d 445, 447-48 (9th Cir.2000) (quoting United States v. Sarkisian, 197 F.3d 966, 984(9th Cir.1999)). A. Attempted Illegal Reentry A previously deported alien who “enters, attempts to enter, or is at any time found in, the United States” without the express consent of the Attorney General has violated 8 U.S.C. § 1326(a)(2).

However, for the purposes of § 1326, “enter” has a narrower meaning than its colloquial usage. An alien has not entered the United States under § 1326 unless he does so “free from official restraint.” United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 n. 3 (9th Cir.2000) (en banc) (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000)); see also United States v. Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir.2001) (“Since 1908, federal courts have recognized that ‘entering’ the United States requires more than physical presence within the country. ...

To ‘enter,’ an alien must cross the United States border free from official re straint.” (citing Pacheco-Medina, 212 F.3d at 1166)); United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir.2001) (discussing the “legal fiction that entry is not accomplished until a person is free from official restraint”). Attempted illegal reentry requires proof of specific intent, Gracidas-Ulibarry, 231 F.3d at 1190, more particularly the specific intent “to reenter without consent.” United States v. Leos-Maldonado, 302 F.3d 1061, 1063(9th Cir.2002).

Because an alien has not “reentered” unless he has done so free from official restraint, the requirement of specific intent for this attempt crime means that to be found guilty, a defendant must have the specific intent to reenter “free from official restraint.” B. Official Restraint At trial, the government did not attempt to prove that the defendant intended to be free of official restraint, but instead argued that “official restraint” could only be restraint by officials of the Department of Homeland Security (“DHS”).

Thus, if the defendant had the specific intent to be taken to jail, he satisfied the statute’s requirement of having the intent to be free from official restraint. The district court agreed, and instructed the jury, “An alien enters or reenters the United States when they [sic] actually cross the border and are free to go about, that is, go at large or at will within the United States. If the alien is restrained by the agents or barriers of the Department of Homeland Security at the border, they [sic] are not yet free to go about or at large within the United States.” (emphasis added).

On appeal, all parties now agree that contrary to the jury instructions and repeated statements of the court and prosecution, official restraint — a legal concept that is “interpreted broadly” in our circuit, Hernandez-Herrera, 273 F.3d at 1219 (citing Ruiz-Lopez, 234 F.3d at 448) — encompasses restraint by any government official, not just officials of DHS. See, e.g., United States v. Oscar, 496 F.2d 492, 493 (9th Cir.1974) (holding that official restraint encompasses restraint by customs officials); cf. United States v.

Zavala-Mendez, 411 F.3d 1116, 1120 n. 19 (9th Cir.2005) (“Many people would rather be arrested and put in a warm jail than leave the safety of ‘official restraint’....”). Our circuit precedent clearly holds that an alien who is on United States soil, but who is “deprived of [his] liberty and prevented from going at large within the United States,” remains under official restraint and therefore has not entered the country for the purposes of § 1326.

Hernandez-Herrera, 273 F.3d at 1218(quoting Pacheco-Medina, 212 F.3d at 1163-64(quoting Ex parte Chow Chok, 161 F. 627, 628-29 (N.D.N.Y.1908), aff'd 163 F. 1021 (2d Cir. 1908))); see also id. at 1219(stating that aliens who “lack[] the freedom to go at large and mix with the population” remain under official restraint) (quoting Ruiz-Lopez, 234 F.3d at 448) (emphasis added). This understanding of the legal status of certain aliens in our country stretches back many decades. In Kaplan v.

Tod, 267 U.S. 228, 229, 45 S.Ct. 257, 69 L.Ed. 585 (1925), an alien thirteen-year-old was brought to Ellis Island, and then “handed over to the Hebrew Sheltering and Immigrant Aid Society,” which allowed her to live with her father. Writing for the Court, Justice Holmes concluded that “[w]hen her prison bounds were enlarged by committing her to the custody of the Hebrew Society, the nature of her stay within the territory was not changed. She was still in theory of law at the boundary line and had gained no foothold in the United States.” Id. at 229-30, 45 S.Ct. 257.

With this proper understanding of the scope of official restraint in mind, it is clear that an alien who is under official restraint from the moment of crossing, and who never intended to avoid or change that status, cannot therefore have the necessary intent to be guilty of attempted illegal reentry. This precisely describes the defendant’s actions and intent here— as the prosecution itself argued to the jury, but on the faulty premise that intent to go to jail was intent to be free of official restraint. C.

The Evidence Requires Reversal Under the correct view of the law, the evidence adduced at trial was insufficient to support the defendant’s conviction. The evidence is uncontroverted that agent Avila saw the defendant before he crossed into United States territory, and that when the defendant crossed the border, he walked straight to Avila and told him that he wanted to go to jail. See Ruiz-Lopez, 234 F.3d at 448(“[W]e construe restraint broadly to include constant government surveillance of an alien.... ”).

There is no evidence to support the government’s post-hoc theorizing that the defendant actually intended to sneak into the country, and changed his plans only when he was spotted by Avila. These facts are thus distinguishable from those in Leos-Maldonado, where we concluded that the evidence supported a finding of specific intent to reenter in part because of the defendant’s efforts to avoid detection. See 302 F.3d at 1064 (“The evidence shows that [the defendant] scaled the international border wall, crouching down to avoid detection after landing on American soil.”).

Here, the evidence establishes that the defendant made no effort to evade official restraint. Indeed, he sought such restraint. The jury’s verdict was premised on a faulty understanding of the governing statute. III. Conclusion Because no rational trier of fact could conclude, on the evidence presented here, that the defendant was guilty of the specific intent crime of attempted illegal reentry, we reverse the defendant’s conviction and remand to the district court to enter a judgment of acquittal. See Ruiz-Lopez, 234 F.3d at 448-49. REVERSED and REMANDED. .

The defendant, who has been deported several times, also appeals the district court’s admission of evidence of his prior convictions fer illegal reentry. Because we reverse his conviction on other grounds, we do not reach the defendant’s other claims. . The dissent proposes a much narrower

interpretation of "official restraint,” based on practical and policy considerations. However, we are required to apply our circuit’s rule that if an alien is "deprived of [his] liberty and prevented from going at large within the United States,” he is not free from official restraint. Hernandez-Herrera, 273 F.3d at 1218 (citations omitted). For the purposes of determining intent, the defendant here was in much the same situation as the orphan in Kaplan — he sought to have his "prison bounds ... enlarged” beyond Agent Avila's custody to the custody of some other United States jailer.

Kaplan, 267 U.S. at 230, 45 S.Ct. 257. Surely the dissent does not impute to the defendant a grasp of its theory of how the doctrine of official restraint operates. . As for the dissent’s practical concern that our holding creates a new loophole for § 1326 violators, this case presents a rare set of factual circumstances where there is no evidence of anything other than the intent to be taken into custody. Given these facts and its misapprehension of the governing law, the government made no effort to dispute that the defendant's intent was to be taken into custody and to remain in custody.