United States v. Lopez-Perera ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50102
Plaintiff-Appellee,
v.  D.C. No.
CR-04-01396-NAJ
ANTONIO LOPEZ-PERERA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
January 12, 2006—Pasadena, California
Filed February 21, 2006
Before: Mary M. Schroeder, Chief Judge,
Alfred T. Goodwin and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
1815
UNITED STATES v. LOPEZ-PERERA 1817
COUNSEL
Jeremy D. Warren, San Diego, California, for the defendant-
appellant.
Anne Kristina Perry, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
1818 UNITED STATES v. LOPEZ-PERERA
OPINION
GOODWIN, Circuit Judge:
Antonio Lopez-Perera appeals his conviction of violating
18 U.S.C § 922(g)(5)(A), (being an alien illegally or unlaw-
fully in the United States in possession of a firearm). He
assigns error to the denial of his Federal Rule of Criminal
Procedure 29 motion seeking a judgment of acquittal.
Because the district court misinterpreted the meaning of the
statute, it erred in denying the motion.
I. Background
On May 9, 2004, Lopez-Perera, a citizen of Mexico, drove
his van, with no passengers, from Mexico into the San Ysidro
Port of Entry in California. When first asked by an officer at
the border, Lopez-Perera falsely stated that he was a United
States citizen. Lopez-Perera then offered a California security
guard identification card as proof of his citizenship.
The officer did not accept the proffered card as proof of cit-
izenship and directed Lopez-Perera towards secondary inspec-
tion. Lopez-Perera waited approximately twenty-five minutes
in the secondary inspection area and then drove his van
toward the north exit of the San Ysidro Port of Entry. Border
officers noticed Lopez-Perera’s movements and stopped him
before he could leave the area.
After stopping the van, the officers arrested and searched
Lopez-Perera. The search uncovered the California security
guard identification card and a permit to carry an exposed
firearm. The permit to carry an exposed firearm prompted the
officers to search the van. The search revealed the presence
of a .38 caliber Taurus Revolver.
Lopez-Perera was held at the port of entry and questioned
by an Immigration and Customs Enforcement special agent.
UNITED STATES v. LOPEZ-PERERA 1819
After providing Lopez-Perera with a Miranda warning and
receiving a signed waiver, the special agent learned that
Lopez-Perera was a citizen of Mexico and that the pistol
recovered in the van was Lopez-Perera’s.
On May 19, 2004, Lopez-Perera was indicted for violating
18 U.S.C. § 911 (making a false claim of United States citi-
zenship) and 18 U.S.C. § 922(g)(5)(A) (possession of a fire-
arm by an alien illegally or unlawfully in the United States).
On October 26, 2004, Lopez-Perera was tried on both counts
in a bench trial. Lopez-Perera put on no affirmative evidence,
conceded the false claim to citizenship charge, and moved for
a judgment of acquittal with respect to the firearm charge. As
noted, the court denied the motion and found Lopez-Perera
guilty on both counts.
Lopez-Perera was sentenced to thirteen months imprison-
ment for each count followed by a year of supervised release
on the false claim of citizenship charge and three years of
supervised release on the firearm charge. The terms of impris-
onment for each count were to run concurrently as were both
terms of supervised release.
II. Analysis
This appeal requires us to construe 18 U.S.C. § 922(g)
(5)(A) and 27 C.F.R. § 478.11. Lopez-Perera argues that the
drafters intended to use immigration terms of art when they
denounced the possession of a firearm by a person “illegally
or unlawfully in the United States.” The district court dis-
agreed and held that, by his physical presence in the port of
entry, Lopez-Perera satisfied the element of the crime of
being illegally or unlawfully in the United States. We hold
that the law is contrary to the district court’s ruling.
“To determine the plain meaning . . . of a statute, we must
examine not only the specific provision[s] at issue, but also
the structure of the law as a whole including its object and
1820 UNITED STATES v. LOPEZ-PERERA
policy.” Almero v. INS, 18 F.3d 757, 760 (9th Cir. 1994). If
a statute is silent regarding an issue, we will defer to the inter-
pretation of the administrative agency charged with imple-
menting the statute. Id. at 763.
[1] Here, 18 U.S.C. § 922(g)(5) reads:
(g) It shall be unlawful for any person — . . .
(5) who, being an alien—
(A) is illegally or unlawfully in the
United States; or
(B) except as provided in subsection
(y)(2), has been admitted to the United
States under a nonimmigrant visa (as that
term is defined in section 101(a)(26) of
the Immigration and Nationality Act (8
U.S.C. § 1101(a)(26))); . . .
to ship or transport in interstate or foreign com-
merce, or possess in or affecting commerce, any fire-
arm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported
in interstate or foreign commerce.
18 U.S.C. § 922(g)(5) (emphasis added). The portion of the
statute at issue in this case is the term “illegally or unlawfully
in the United States.” The statute provides no definition of
what constitutes illegal or unlawful presence in the United
States.
[2] The legislative history is similarly silent. No comments
concerning the meaning of “illegally or unlawfully in the
United States” appear in the 1968 legislative history. See, e.g.,
114 CONG. REC. S13867-69 (daily ed. May 17, 1968). There
are also no comments regarding the term in the 1986 legisla-
UNITED STATES v. LOPEZ-PERERA 1821
tive history, when the statute was amended to include the
most recent language for § 922(g)(5)(A). See, e.g., 132 CONG.
REC. S9556-60 (daily ed. May 6, 1986); 132 CONG. REC.
H7075-92 (daily ed. April 10, 1986); 131 CONG. REC. S18155-
18237 (daily ed. July 9, 1985).
When Senator Durbin introduced his 1998 amendment to
the statute, his comments focused on his concern about for-
eign tourists purchasing firearms in the United States, not
about aliens sneaking firearms into the country. See 144
CONG. REC. S8641 (daily ed. July 21, 1998) (statement of Sen.
Durbin) (“I think, frankly, we ought to say that if you come
into this country as our guest, not as a citizen of the United
States, that we are going to restrict your right to purchase a
firearm.”). Senator Durbin did not offer a definition of the
words used in the amended statute. See id. at S8639-42.
[3] The Bureau of Alcohol, Tobacco, and Firearms
(“BATF”), however, as the agency charged with administer-
ing § 922, has promulgated a regulation including a definition
for “Alien illegally or unlawfully in the United States.” 27
C.F.R. § 478.11. The relevant portion of the BATF’s defini-
tion provides:
Aliens who are unlawfully in the United States are
not in valid immigrant, nonimmigrant or parole sta-
tus. The term includes any alien —
(a) Who unlawfully entered the United States with-
out inspection and authorization by an immigration
officer and who has not been paroled into the United
States under section 212(d)(5) of the Immigration
and Nationality Act (INA).
27 C.F.R. § 478.11 (emphasis added). The BATF’s definition
requires analysis because it fills a gap left by Congress in
enacting § 922(g)(5)(A). See Chevron, Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
1822 UNITED STATES v. LOPEZ-PERERA
In 1996, the BATF published a notice in the Federal Regis-
ter that it was planning to amend the regulation to include def-
initions for the categories of persons prohibited from owning
firearms. Definitions for the Categories of Persons Prohibited
From Receiving Firearms, 62 Fed. Reg. 34,634, 34,635 (June
27, 1997) (to be codified at 27 C.F.R. § 478.11). During the
requisite public comment process, the Immigration and Natu-
ralization Service (“INS”) submitted comments to the BATF
regarding the immigration-related definitions. Id. In making
the comments, the INS pointed out that “the INA uses specific
legal terms to refer to the status of aliens in the United
States.” Id. at 34,637 (emphasis added).
[4] The BATF considered the INS’ suggestions and stated
that it “agrees with the INS that the wording of the definition
for [aliens illegally and unlawfully in the United States]
should reflect the terminology used in the Immigration and
Nationality Act. Accordingly, [B]ATF is adopting INS’ pro-
posed definition into the final regulations.” Id. These BATF
statements in the Federal Register make clear that the lan-
guage in 27 C.F.R. § 478.11 must be construed in light of
immigration law.
[5] But, the analysis cannot end here because the definition
that the INS recommended, and the BATF adopted, does not
define the term “entered.” In the context of immigration law,
however, “enter” is “a specific legal term.” Entering the
United States “requires: ‘(1) a crossing into the territorial lim-
its of the United States, i.e., physical presence; (2)(a) inspec-
tion and admission by an immigration officer, or (b) actual
and intentional evasion of the inspection at the nearest inspec-
tion point; and (3) freedom from official restraint.’ ” Sidhu v.
Ashcroft, 368 F.3d 1160, 1163-64 (9th Cir. 2004) (quoting
Matter of Patel, 20 I. & N. Dec. 368, 370 (1991)).
[6] Here, Lopez-Perera satisfied the first entry requirement
because he crossed into the United States from Mexico; the
San Ysidro Port of Entry is in the United States. Just as in
UNITED STATES v. LOPEZ-PERERA 1823
Sidhu, it is arguable whether Lopez-Perera satisfied the sec-
ond entry requirement because he was considered by an offi-
cer at primary inspection and forwarded on to secondary
inspection. The inspection point is moot, however, because
Lopez-Perera was never free from official restraint and, there-
fore, never entered the United States. See Id. at 1164
(“Because Sidhu never exited secondary inspection, she was
not free from official restraint.”). “Aliens who proceed
directly as instructed by signs or otherwise to the customs
facility . . . are not sneaking into the United States. Instead
they are presenting themselves to American officials in the
manner designated by the United States government.” United
States v. Zavala-Mendez, 411 F.3d 1116, 1120 (9th Cir. 2005)
(confirming the well established proposition that a person is
not “in” the United States until he is not only physically pres-
ent on the United States side of the border, but also enjoys
“freedom from official restraint.”), see also United States v.
Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005)
(explaining 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”) (internal citations
omitted).
We are confronted with two questions when analyzing an
administering agency’s construction of a statute. Chevron,
467 U.S. at 842. The first question is “whether Congress has
directly spoken to the precise question at issue.” Id. If it has,
both courts and agencies are bound by Congress’ clear mean-
ing. Id. at 842-43. If Congress has not spoken clearly and an
agency has promulgated a regulation, however, we cannot
simply impose our own construction of the statute as we could
in the absence of a regulation. Id. at 843. “Rather, if the stat-
ute is silent or ambiguous with respect to the specific issue,
the [second] question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
Id. Deference is granted to the agency’s administrative inter-
pretations
1824 UNITED STATES v. LOPEZ-PERERA
whenever decision as to the meaning or reach of a
statute has involved reconciling conflicting policies,
and a full understanding of the force of the statutory
policy in the given situation has depended upon
more than ordinary knowledge respecting the matters
subjected to agency regulations. If this choice repre-
sents a reasonable accommodation of conflicting
policies that were committed to the agency’s care by
the statute, we should not disturb it unless it appears
from the statute or its legislative history that the
accommodation is not one that Congress would have
sanctioned.
Id. at 844-45 (citations and internal quotations omitted).
[7] Considering the confluence of immigration law and
criminal law inherent in § 922(g)(5)(A), it cannot be said that
the BATF’s decision to utilize immigration-specific terms is
an impermissible construction of the statute. See id. at 866
(“[F]ederal judges — who have no constituency — have a
duty to respect legitimate policy choices made by those who
do. The responsibilities for assessing the wisdom of . . . policy
choices and resolving the struggle between competing . . .
public interest[s] are not judicial ones: ‘Our Constitution vests
such responsibilities in the political branches.’ ” (quoting TVA
v. Hill, 437 U.S. 153, 195 (1978))). Furthermore, no part of
§ 922(g)(5)(A)’s legislative history indicates that the decision
to use immigration law definitions is one that Congress would
not sanction.
In its brief and in response to questions at oral argument,
the government argued that the “official restraint” doctrine is
limited to illegal re-entry cases under 8 U.S.C. § 1326. The
cases cited by the government to support this argument, how-
ever, highlight Congress’ detailed understanding of the differ-
ence between the terms “come to the United States” and “in
the United States.” United States v. Hernandez-Garcia, 284
F.3d 1135, 1137-39 (9th Cir. 2002) (recognizing a distinction
UNITED STATES v. LOPEZ-PERERA 1825
between “coming to” and “entering” the United States);
United States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir.
2002) (“Deliberately overruling case law requiring entry to
sustain a smuggling conviction, Congress replaced the words
‘brings into’ with the words ‘brings to.’ ”). Indeed, in revising
8 U.S.C. § 1324 to no longer require an alien’s “entry” to sus-
tain a smuggling conviction, Congress has shown that it
understands the distinction between “coming to” the United
States (which does not require entry) and coming “into” or
being “in” the United States (which requires both physical
presence and freedom from official restraint). See, e.g.,
United States v. Munoz, 412 F.3d 1043, 1048-49 (9th Cir.
2005) (holding that an alien being smuggled to the United
States “comes to” the United States under 8 U.S.C.
§ 1324(a)(2)(B) when he crosses the border whether or not he
or she is under official restraint).
[8] Section 922(g)(5)(A) does not criminalize the posses-
sion of a firearm by an alien who “comes to the United
States” or “brings a firearm to the United States,” but instead
criminalizes the possession of a firearm by an alien who is “il-
legally or unlawfully in the United States.” Therefore,
because Lopez-Perera had not entered the United States, he
could not have been “illegally or unlawfully in the United
States.”
III. Conclusion
[9] It is clear that Lopez-Perera did not, at the time and
place charged, enter the United States. Because he had not yet
entered the United States, he could not have been “illegally or
unlawfully in the United States.” Congress has made clear
that it understands the distinction between the terms “coming
to” and “bringing to” the United States and the term “in the
United States” and has chosen to use the latter in
§ 922(g)(5)(A). The district court erred in construing
§ 922(g)(5)(A) outside the context of immigration law and
should have granted Lopez-Perera’s Rule 29 motion. We
1826 UNITED STATES v. LOPEZ-PERERA
therefore REVERSE the conviction on the § 922(g)(5)(A)
count, and remand the case for a revised sentence.