United States v. Cesar Aguila-Perez , 344 F. App'x 521 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 31, 2009
No. 09-10447 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00368-CR-MHS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR AGUILA-PEREZ,
a.k.a. Esteban Pavon-Martinez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 31, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Cesar Aguila-Perez appeals the district court’s denial in part of his motion to
suppress statements and evidence, including his fingerprints and alien file, in
connection with his conviction for illegally reentering the United States, in
violation of 8 U.S.C. § 1326(a) and (b).
A detective and police officers encountered Aguila-Perez when they went to
a residence to investigate alleged illegal drug activity. They knocked on the door
and Aguila-Perez answered. Aguila-Perez “beckoned” the officers inside the
house. They had no warrant. Aguila-Perez informed the officers that other
individuals were in the residence; the officers performed a security sweep. Aguila-
Perez admitted being a member of a gang and gave a false name. He was arrested
for giving a false name but was not advised of his Miranda 1 rights. During
questioning to ascertain Aguila-Perez’s biographical information, Aguila-Perez
admitted that he entered the United States illegally. At a later meeting, an officer
ascertained that Aguila-Perez was previously deported from the United States. A
database search based on fingerprints obtained during the meeting revealed Aguila-
Perez’s identity and his pre-existing alien file. Only after this meeting was Aguila-
Perez advised of his Miranda rights and placed in ICE custody. At an evidentiary
hearing, Aguila-Perez made a motion to suppress statements and evidence, which
the magistrate judge granted in part and denied in part. Aguila-Perez subsequently
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Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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entered a conditional guilty plea, preserving his right to appeal the denial of his
motion to suppress evidence.
On appeal, Aguila-Perez first argues that the court erred in finding that he
had consented to the officers’ entry into the house. Second, Aguila-Perez contends
that, even if consent is assumed, the officers’ protective sweep exceeded the scope
of his consent. Third, Aguila-Perez argues that officers seized him without
reasonable suspicion, probable cause, or exigent circumstances. Fourth, Aguila-
Perez concedes that neither his fingerprints nor his alien file may be suppressed
under United States v. Farias-Gonzales, 556 F.3d 1181 (11th Cir. 2009), petition
for cert. filed, (U.S. May 4, 2009) (No. 08-10195), but preserves this issue for
subsequent review. Fifth, Aguila-Perez contends that the warrantless seizure and
custodial interrogation required Miranda warnings.
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000)
(internal quotation marks and citation omitted). We review the district court’s
finding of fact for clear error and its application of the law to the facts de novo.
Farias-Gonzalez, 556 F.3d at 1185. However, if there is an error, in the context of
suppression, we will not reverse a district court’s decision if it is determined that,
under the doctrine of harmless error, the error in question did not have any impact
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on the proceedings. United States v. Alexander, 835 F.2d 1406, 1411 (11th Cir.
1988).
To support a conviction for illegal re-entry, the government must prove that
a defendant is (1) an alien; (2) who previously was deported; (3) thereafter was
found in the United States; and (4) did not have permission to re-enter. 8 U.S.C.
§ 1326(a). “[S]pecific intent is not an element of the offense of illegal re-entry into
the United States after deportation in violation of [] § 1326.” United States v.
Henry, 111 F.3d 111, 114 (11th Cir. 1997).
In Farias-Gonzalez, the defendant was charged with illegally reentering the
country after deportation, in violation of 8 U.S.C. § 1326. 556 F.3d at 1183. The
defendant filed a motion to suppress, contending that his Fourth Amendment rights
had been violated by an unreasonable search and seizure, and he sought to suppress
all evidence obtained as a result. Id. The district court agreed that the search and
seizure was unconstitutional and, accordingly, ordered the suppression of all of the
evidence except for the fingerprint evidence and the defendant’s alien file. Id. at
1184. An alien file contains inter alia (1) evidence of prior deportations;
(2) evidence of lawful entries into the United States; and (3) fingerprints. Id. at
1184 n.2.
In order to determine in Farias-Gonzalez whether the exclusionary rule
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should be applied to identity-related evidence obtained as a result of a
constitutional violation, we applied the cost-benefit balancing test articulated in
Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159 (2006). Farias-Gonzalez, 556
F.3d at 1186. On the one hand, we reasoned that the societal cost associated with
suppressing identity-related information was “great.” Id. at 1189. We noted that
the cost of suppressing identity-related evidence was particularly great in the
§ 1326 context since, under that statute, the defendant’s presence in the country
constitutes an ongoing violation. Id. at 1188 n.8. On the other hand, we concluded
that minimal deterrence benefit would be gained by applying the exclusionary rule.
Id. at 1189. Therefore, we held that “the exclusionary rule does not apply to
evidence to establish the defendant’s identity in a criminal prosecution.” Id. As
such, we held that the fingerprint evidence was not suppressible. Id. Further, an
alien file, containing the defendant’s fingerprints and deportation history, is not
suppressible when it is identity-related evidence, regardless of whether the
government had found the file as a result of an unlawful search and seizure. Id.
at 1189-90.
In this case, as in Farias-Gonzalez, Aguila-Perez’s conviction was based on
identity-related evidence concerning his name and fingerprints, and information
from his pre-existing alien file. Because identity evidence, including Aguila-
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Perez’s fingerprints and alien file, even if obtained pursuant to alleged Fourth
Amendment violations, is not suppressible, and Aguila-Perez does not dispute that
such evidence is sufficient to affirm his conviction, any error by the district court
in denying other portions of his motion to suppress was harmless.
Upon review of the record and upon consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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