United States v. Reyes Medina

• Court: Court of Appeals for the First Circuit
• Decided: April 25, 1995
• Docket: 94-1923
• Status: Published

Opinion

USCA1 Opinion

April 25, 1995        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

          No. 94-1923

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 MOISES REYES-MEDINA,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO 

                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                _____________________

               Carlos   A.   V zquez-Alvarez,   Assistant  Federal   Public
               _____________________________
          Defender,  with  whom  Benicio  S nchez-Rivera,   Federal  Public
                                 _______________________
          Defender, was on brief for appellant.
               Juan  A.   Pedrosa,  Assistant  U.S.   Attorney,  with  whom
               __________________
          Guillermo Gil, United States Attorney, was on brief for appellee.
          _____________

____________________

____________________



Per  Curiam.   Appellant Mois s  Reyes-Medina ("Reyes")
                    Per  Curiam.
                    ___________

          challenges  the  sufficiency  of   the  evidence  supporting  his

          conviction  of attempted  reentry  into the  United States  after

          deportation subsequent to conviction for an aggravated felony, in

          violation  of 8 U.S.C.    1326.    For the  following reasons, we

          affirm.

                                      BACKGROUND
                                      BACKGROUND

                    We  view and  present the  evidence  in the  light most

          favorable  to the government.   United States v.  Abreu, 952 F.2d
                                          _____________     _____

          1458, 1460 (1st Cir.), cert. denied, 112 S. Ct. 1695  (1992).  On
                                 ____  ______

          February  15, 1994,  Reyes,  a native  citizen  of the  Dominican

          Republic,  arrived from the Dominican Republic  at the Luis Mu oz

          Mar n  International Airport in Puerto  Rico.  While applying for

          entry  at the  United States  immigration inspection  area, Reyes

          presented his  Dominican passport, an alien  Registration Receipt

          Card,  his  Social  Security  card,  and  his  completed  customs

          declaration   form.    Immigration   officials  inspecting  these

          documents discovered that Reyes had been previously deported from

          the United States on August 18, 1993, after having been convicted

          of  an  aggravated felony.   Reyes  had  previously lived  in the

          United  States  for  approximately  ten years.    Officials  also

          ascertained  that he  had not  obtained the  express  consent and

          permission  of  the  Attorney  General of  the  United  States to

          reenter the country.   Reyes was then arrested and  later charged

          with violation of 8 U.S.C.   1326.

                                       ANALYSIS
                                       ANALYSIS

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Reyes argues  that the  evidence presented at  trial is

          insufficient to  sustain his  conviction, because  the government

          failed to prove beyond a reasonable doubt two  of the elements of

          the  crime charged.  First, he contends, the government failed to

          affirmatively  prove the  legality  of Reyes'  prior deportation.

          Second, Reyes claims that  the government did not prove  beyond a

          reasonable doubt that  he intended  to enter  the United  States.

          Because   he  did  not  realize  that  entering  Puerto  Rico  is

          tantamount to entering the United States, Reyes argues, he lacked

          the necessary criminal intent,  and his conviction must therefore

          be reversed.

                    When reviewing sufficiency  of the evidence challenges,

          we assess the sufficiency of the evidence as a whole in the light

          most favorable to the verdict, with a view  to whether a rational

          trier  of fact  could have  found the  defendant guilty  beyond a

          reasonable  doubt.   We  do  not weigh  witness  credibility, but

          resolve all credibility issues  in favor of the verdict.   United
                                                                     ______

          States v. Hahn,  17 F.3d 502, 506 (1st Cir.  1994).  The evidence
          ______    ____

          may  be  entirely  circumstantial,  and need  not  exclude  every

          reasonable  hypothesis  of  innocence.     In  other  words,  the

          factfinder  may decide  among reasonable  interpretations  of the

          evidence.  Id.
                     __

                    Sections 1326(a)  and (b)(2)  provide in  relevant part

          that:  1) any  alien; 2)  whose deportation  was subsequent  to a

          conviction for commission of an aggravated  felony; 3) who enters

          or attempts  to enter, or  is at  any time found  in, the  United

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States; 4) without the express consent from the Attorney  General

          for such reentry; 5)  shall be fined and/or imprisoned.  8 U.S.C.

            1326.    Proving a  lawful  prior deportation  is part  of  the

          government's  burden in establishing a    1326 violation.  United
                                                                     ______

          States  v. Galicia-Gonz lez, 997  F.2d 602, 603  (9th Cir. 1993).
          ______     ________________

          An overwhelming majority of  other circuits to decide this  issue

          have held that the government need not prove that a defendant had

          specific intent to violate  the statute; all that is  required is

          that  a defendant  enter or  attempt to  enter the  United States

          voluntarily.  United  States v. Ayala, 35 F.3d 423, 426 (9th Cir.
                        ______________    _____

          1994) (citing United States v.  Ramos-Quirarte, 935 F.2d 162, 163
                        _____________     ______________

          (9th Cir. 1991)).   See also United States v.  Espinoza-Le n, 873
                              ________ _____________     _____________

          F.2d 743, 746  (4th Cir.)(citing cases),  cert. denied, 492  U.S.
                                                    ____  ______

          924  (1989); United  States  v.  Newton,  677  F.2d  16,  17  (2d
                       ______________      ______

          Cir.)(per  curiam), cert.  denied,  459 U.S.  850 (1982);  United
                              ____   ______                          ______

          States v. Hussein, 675 F.2d 114, 115-116 (6th Cir.) (per curiam),
          ______    _______

          cert.  denied,  459 U.S.  869 (1982);  but  see United  States v.
          ____   ______                          ___  ___ ______________

          Anton, 683 F.2d 1011 (7th Cir. 1982)(requiring specific intent).
          _____

                    Applying  these principles  to  Reyes'  first  argument

          regarding  the government's  alleged  failure to  prove that  his

          deportation was lawful,  we find his claim  to be meritless.   It

          appears from the  record that Reyes  did not collaterally  attack

          the  validity of his deportation  either before or  at trial, but

          simply comes before us  now and contends that the  government did

          not   adduce  sufficient   evidence  of   the  legality   of  his

          deportation.  The government,  however, submitted at trial Reyes'

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warrant  of deportation,  which  certified  that his  deportation

          orders  were issued and carried  out after due  hearing before an

          authorized officer.  We think that this evidence suffices to make

          out a prima facie  case that Reyes was legally  deported, and the

          jury was entitled to find, in  light of this evidence and nothing

          on record to contradict it, that the government met its burden of

          proof as to this element.

                    Reyes' second argument, that he did not intend to enter

          the  United States because he  believed that Puerto  Rico was not

          part  of the United States, must also  fail.  Although it is true

          that  many  people do  not  realize that  Puerto Rico  is  a U.S.

          possession, the sincerity or reasonableness of Reyes' beliefs are

          irrelevant.  Even  assuming that such  a defense were  available,

          there was sufficient  evidence for  the jury to  find that  Reyes

          knew  that  he was  entering the  United  States.   During cross-

          examination, the  government coaxed an admission  from Reyes that

          he had  visited Puerto Rico  before, at some  point while  he was

          residing in  the United States.  On that  visit, he had had to go

          through the United States immigration and customs point in  order

          to enter Puerto Rico.   The jury was entitled to infer,  based on

          this admission, that Reyes must have known that he would face the

          same United  States immigration  and customs  point, and that  he

          therefore must  have  also known  that entering  Puerto Rico  was

          tantamount  to entering  the United  States.   The jury  was also

          entitled  to  disbelieve  Reyes.   We  therefore  find that  this

          circumstantial evidence  of his  intent is sufficient  to support

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the jury's guilty verdict.

                    For the foregoing reasons, we affirm Reyes' conviction.
                                                  ______

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