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United States v. Aldana

United States Court of Appeals, Ninth Circuit

December 29, 2017

United States of America, Plaintiff-Appellee,
v.
Rafael Aldana, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Julio Cesar Suarez, Defendant-Appellant.

          Argued and Submitted September 1, 2017 Pasadena, California

         Appeal from the United States District Court for the Southern District of California Nos. 3:15-cr-03101-BGS-DMS-1, 3:15-cr-03156-RBB-AJB-1 Dana M. Sabraw, District Judge, Presiding

          Doug Keller (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendants-Appellants.

          Daniel E. Zipp (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Alana W. Robinson, Acting United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: William A. Fletcher and Sandra S. Ikuta, Circuit Judges, and Sarah Evans Barker, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         Affirming misdemeanor convictions under 8 U.S.C. § 1325(a)(1) for attempting to enter the United States "at any time or place other than as designated by immigration officers, " the panel held that a place "designated by immigration officers" refers to a specific immigration facility, not an entire geographic area.

          OPINION

          IKUTA, Circuit Judge.

         Rafael Aldana and Julio Cesar Suarez were each convicted of the misdemeanor offense of "attempt[ing] to enter the United States at any time or place other than as designated by immigration officers, " in violation of 8 U.S.C. § 1325(a)(1). While not disputing that they entered the United States miles away from any established port of entry facility, Aldana and Suarez argue that because the applicable regulations designate entire geographic regions as ports of entry, there was insufficient evidence that they had violated the statute. We conclude that a place "designated by immigration officers" for purposes of § 1325(a)(1) refers to a specific immigration facility, not an entire geographic area, and therefore affirm the district court.

         I

         On November 28, 2015, a border patrol surveillance agent observed Rafael Aldana climbing over the fence separating the United States and Mexico. A second agent found him hiding in the brush approximately 400 yards north of the border and two miles from the nearest port of entry facility at Otay Mesa, California. Aldana admitted to climbing over the fence and told the border patrol officer that he was a citizen of Mexico and had no documentation that would allow him to enter the United States on a legal basis. Aldana was charged with the misdemeanor offense of "attempt[ing] to enter the United States at any time or place other than as designated by immigration officers, " in violation of 8 U.S.C. § 1325(a)(1).[1]

         At a bench trial before a magistrate judge, Aldana moved for a judgment of acquittal on the ground that the government failed to prove that he had entered at a place not designated by immigration officers. The magistrate judge rejected Aldana's argument and the district court affirmed. Aldana was sentenced to time served.

         Julio Cesar Suarez has a similar story. On November 26, 2015, a border patrol officer discovered Suarez lying down among the tumbleweeds in an area located north of the border fence and about two miles east of the Otay Mesa port of entry facility. Suarez admitted that he was a citizen of Mexico and did not have any documents giving him a lawful basis for entering the United States. Like Aldana, Suarez was also charged with "attempt[ing] to enter the United States at any time or place other than as designated by immigration officers, " in violation of 8 U.S.C. § 1325(a)(1). At his bench trial, ...


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