United States v. Ramon Valencia-Cruz ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50386
Plaintiff-Appellee, D.C. No.
3:18-cr-02711-LAB-1
v.
RAMON VALENCIA-CRUZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 8, 2019
Pasadena, California
Before: FARRIS and McKEOWN, Circuit Judges, and KENDALL,** District
Judge.
Ramon Valencia-Cruz was found guilty of attempted illegal reentry, in
violation of 8 U.S.C. § 1326. He appeals the denial of his motion for judgment of
acquittal and the district court’s sentence, which included a term of supervised
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
release. We review de novo a district court’s decision to deny a motion for
judgment of acquittal, United States v. Christensen, 828 F.3d 763, 780 (9th Cir.
2015), and review a district court’s sentence under an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). We find that a rational trier of fact
could have found the essential elements of 8 U.S.C. § 1326 beyond a reasonable
doubt and that the district court did not abuse its discretion in choosing to impose a
within guideline term of supervised release.
Ramon Valencia-Cruz is a Mexican national with a significant history of
deportations and reentries to the United States. Most recently, Valencia was
arrested in January 2018 at the San Ysidro port of entry where he presented a
facially valid lawful permanent resident card. Though his LPR card was facially
valid, Valencia did not have legal authority to enter the United States based on his
multiple prior removals. Valencia pleaded not guilty and proceeded to trial. At the
close of evidence, Valencia moved for a judgment of acquittal, arguing that he
could not possibly be found guilty as a matter of law of attempted illegal reentry
because he followed the proper procedures for admission by attempting to enter
through a designated port of entry. In June 2018, Valencia was convicted of
attempted illegal reentry and sentenced to 27 months in prison and a three-year
term of supervised release.
For an individual to be found guilty of attempted illegal reentry, the
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government must show “’(1) the defendant had the purpose, i.e., conscious desire,
to reenter the United States without the express consent of the Attorney General;
(2) the defendant committed an overt act that was a substantial step towards
reentering without that consent; (3) the defendant was not a citizen of the United
States; (4) the defendant had previously been lawfully denied admission, excluded,
deported or removed from the United States; and (5) the Attorney General had not
consented to the defendant's attempted reentry.’” United States v. Castillo-
Mendez, 868 F.3d 830, 836 (9th Cir. 2017) (quoting United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000)).
Valencia argues that an alien, like himself, who attempts to enter in a
procedurally proper way (e.g., entering through the designated pedestrian lane with
a facially valid LPR card), cannot be said to have taken a substantial step towards
making an illegal reentry. Such a position is inconsistent with the statute and this
Court’s precedent. A defendant’s overt act or substantial step need not take the
form of some nefarious or improper action to be considered in violation of § 1326.
United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir. 2002) (“It matters
not whether the defendant’s overt act takes the form of a surreptitious border
crossing or a misrepresentation of legal status.”). On appeal, we need only ask
whether, after viewing all evidence in a light most favorable to the government, a
rational trier of fact could have found that the government met all the essential
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elements of § 1326 beyond a reasonable doubt. Christensen, 828 F.3d at 780.
Here, the government presented substantial evidence to support an
affirmative finding for each element of attempted illegal reentry. If ever there was
an alien on notice that he had no lawful right to reenter the United States, it was
Valencia. He had been removed from the United States on six occasions. Upon
those removals, he signed multiple sworn statements attesting to the fact that he
did not have permission to reenter the country without the consent of the Attorney
General. At argument, Appellant’s counsel suggested that, notwithstanding his
prior removals and concessions that he had no legal right to reenter, his attempted
reentry was proper on this occasion because he could have sought consent to enter
at the border facility. The record below belies such an argument. When Valencia
approached the border official, he did not inquire as to the validity of his LPR card
or ask permission to enter. Rather, he unequivocally stated he was going to Las
Vegas and placed a bottle of tequila on the counter. Valencia had no intention of
discussing his immigration status and seeking consent to enter. He instead was
trying once again to use the LPR card he used in the past, which led to his previous
deportation, to enter and head to his ultimate destination—Las Vegas.
Accordingly, we affirm the district court’s denial of Valencia’s motion for a
judgment of acquittal.
Valencia’s second issue on appeal is whether the district court abused its
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discretion by choosing to impose the maximum term of supervised release. Having
been found guilty of attempted illegal reentry, Valencia faced a guideline range of
one to three years of supervised release. USSG § 5D1.1(a)(2). The district court
chose to impose the maximum term of supervised release. In doing so, the district
court explicitly recognized that Valencia had a significant history of removals and
yet repeatedly chose to reenter the country without consent. The three-year term of
supervised release represents a within-guideline sentence and is entirely reasonable
given the recidivist history and personal characteristics of Valencia. United States
v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012). Therefore, we also
affirm the district court’s sentence.
AFFIRMED.
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