United States v. Pedro Hernandez-Quintania , 874 F.3d 1123 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50171
Plaintiff-Appellee,
D.C. Nos.
v. 3:14-cr-01225-LAB-1
3:16-cr-00132-LAB-1
PEDRO HERNANDEZ-
QUINTANIA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 29, 2017
Pasadena, California
Filed November 3, 2017
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Nancy Freudenthal, * Chief District Judge.
Opinion by Judge Freudenthal
*
The Honorable Nancy Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
2 UNITED STATES V. HERNANDEZ-QUINTANIA
SUMMARY **
Criminal Law
The panel affirmed (1) a conviction under 18 U.S.C.
§ 1326 for reentry by a previously-deported alien without the
express consent of the Attorney General to reapply for
admission, and (2) the resulting revocation of the
defendant’s supervised release from a prior illegal reentry
conviction.
The panel rejected the defendant’s contention that the
government failed to prove he did not obtain the Attorney
General’s consent to reapply for admission to entering the
United States. The panel held that § 1326 requires a
deported alien to receive the Attorney General’s consent to
reapply for admission after his or her most recent
deportation, regardless of whether he or she had prior
permission to reapply, and that the evidence was sufficient
for the jury to find that the defendant was in the United States
without such consent.
The panel held that the district court properly denied the
defendant’s Batson challenge asserting that the government
struck two jurors based on their ethnicity. The panel held
that the totality of the circumstances does not raise an
inference that the government’s challenges were racially
motivated, that the defendant failed to make a prima facie
case of discrimination, and that the district court’s comments
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ-QUINTANIA 3
regarding the possible reasons for striking the jurors did not
constitute structural error.
COUNSEL
Doug Keller (argued), Federal Defenders of San Diego Inc.,
San Diego, California, for Defendant-Appellant.
Colin M. McDonald (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.
OPINION
FREUDENTHAL, Chief District Judge:
Hernandez-Quintania appeals from a jury conviction
under 8 U.S.C. § 1326, which makes it a felony for an alien
who has previously been deported to reenter the United
States without the express consent of the Attorney General
to reapply for admission. As a result of the conviction, the
district court also found Hernandez-Quintania violated the
terms of his supervised release from a prior 2014 illegal
reentry conviction.
We find there was substantial evidence to support
Hernandez-Quintania’s conviction and that the district court
properly denied Hernandez-Quintania’s Batson challenge.
We therefore affirm Hernandez-Quintania’s conviction and
supervised release revocation.
4 UNITED STATES V. HERNANDEZ-QUINTANIA
FACTS AND PROCEEDINGS BELOW
Hernandez-Quintania is a Mexican citizen. In 2014, he
pleaded guilty to being a removed alien found in the United
States in violation of 8 U.S.C. § 1326. For that conviction
he received a ten-month prison sentence and three years of
supervised release. The conditions of his supervised release
required he not “commit another federal, state or local
crime.” After Hernandez-Quintania finished serving his
prison sentence, he was removed to Mexico in April of 2015.
On January 9, 2016, Border Patrol Agent Amadeo
Castillo picked up Hernandez-Quintania in Dulzura,
California. Agent Castillo found Hernandez-Quintania lying
down on his stomach at the corner of an intersection.
Hernandez-Quintania told Agent Castillo he was a Mexican
citizen. Hernandez-Quintania did not have any documents
allowing him to legally enter or remain in the United States.
The government charged Hernandez-Quintania with
illegal reentry of a removed alien in violation of 8 U.S.C.
§ 1326. Hernandez-Quintania pleaded not guilty and
proceeded to a jury trial on April 5, 2016. During trial, the
government introduced evidence that Hernandez-Quintania
was deported on July 23, 2013 and again on April 15, 2015.
The government also introduced evidence that Hernandez-
Quintania had not received permission for admission since
his last deportation in 2015. The jury returned a guilty
verdict. As a result of his conviction, the district court also
revoked Hernandez-Quintania’s supervised release because
he committed another federal crime while on supervision.
Hernandez-Quintania timely appealed, challenging the
sufficiency of the evidence that he reentered the United
States without permission. Hernandez-Quintania also
claims the district court erred in determining he failed to
UNITED STATES V. HERNANDEZ-QUINTANIA 5
establish a prima facie case of purposeful discrimination in
his Batson challenge. The only challenge to the revocation
of supervised release is related to the viability of Hernandez-
Quintania’s conviction under § 1326.
DISCUSSION
This case consolidates two appeals: Hernandez-
Quintania’s appeal of the revocation of his supervised
release and his criminal conviction under 8 U.S.C. § 1326.
Hernandez-Quintania challenges the sufficiency of the
evidence related to his conviction. Specifically, Hernandez-
Quintania questions whether the Government proved he did
not obtain consent to reapply for admission. Additionally,
Hernandez-Quintania claims the district court improperly
denied his Batson challenge.
I. Sufficiency of the Evidence
Hernandez-Quintania argues the district court erred in
finding the government produced sufficient evidence that he
was guilty of illegally reentering the country after being
deported under 8 U.S.C. § 1326(a). Sufficiency of the
evidence is satisfied if “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Tisor, 96 F.3d
370, 379 (9th Cir. 1996) (italics omitted) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). Conflicting evidence
is to be resolved in favor of the verdict and “all reasonable
inferences are to be drawn in favor of the government [.]”
United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1201–
02 (9th Cir. 2000).
6 UNITED STATES V. HERNANDEZ-QUINTANIA
The relevant portion of 8 U.S.C. § 1326 provides:
Subject to subsection (b), any alien who—
(1) has been denied admission, excluded,
deported, or removed or has departed
the United States while an order of
exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at any
time found in, the United States,
unless (A) prior to his reembarkation
at a place outside the United States or
his application for admission from
foreign contiguous territory, the
Attorney General has expressly
consented to such alien’s reapplying
for admission; . . . . shall be fined
under Title 18, or imprisoned . . . , or
both. 1
Hernandez-Quintania’s only claim of error is that the
government failed to prove he did not obtain the Attorney
General’s consent to reapply for admission prior to entering
the United States.
During the trial, Border Patrol Agent Joel Gonzalez
made reference to an application for admission in 2004.
However, there was no testimony regarding the resolution of
1
In 2002, Congress transferred the authority to grant such consent
from the Attorney General to the Secretary of Homeland Security. See
Homeland Security Act of 2002, Pub.L. No. 107–296, §§ 402, 1517,
116 Stat. 2135, 2177–78, 2311 (2002) (codified at 6 U.S.C. §§ 202, 557).
UNITED STATES V. HERNANDEZ-QUINTANIA 7
that application. Hernandez-Quintania argues that the
Attorney General took some action on the 2004 application
and it could have been granted. The crux of Hernandez-
Quintania’s argument is that if he received consent to
reapply for admission from the Attorney General at any time
prior to January 9, 2016, he was immune from § 1326
prosecution, regardless of the number of subsequent
deportations after 2004. Therefore, Hernandez-Quintania
claims the government was required to prove he never
received consent to reapply for admission, which the
government failed to prove in this case, because there was
no evidence regarding the disposition of the 2004
application.
This issue requires statutory construction of § 1326(a).
“[W]here Congress has made its intent clear, ‘we must give
effect to that intent.’” Miller v. French, 530 U.S. 327, 336
(2000) (citing Sinclair Refining Co. v. Atkinson, 370 U.S.
195, 215 (1962)). In examining the language of the statute,
we conclude the Attorney General’s consent to reapply must
come after the most recent deportation.
The plain language of the statute provides that “any alien
who – (1) has been denied admission, excluded, deported, or
removed . . . , and thereafter (2) enters, attempts to enter, or
is at any time found in, the United States, unless (A) prior to
his reembarkation at a place outside the United States . . . the
Attorney General has expressly consented to such alien’s
reapplying for admission . . . .” 8 U.S.C. § 1326(a)
(emphasis added). This section’s plain language requires a
deported alien to receive the Attorney General’s consent to
reapply for admission after his or her previous deportation,
regardless of whether he or she had prior permission to
reapply. See United States v. Cabral, 252 F.3d 520, 522–23
(1st Cir. 2001) (finding as an element of 8 U.S.C. § 13268 UNITED STATES V. HERNANDEZ-QUINTANIA
“that he had not received the express consent of the Attorney
General of the United States to apply for readmission to the
United States since the time of his previous arrest and
deportation.”); United States v. Angeles-Mascote, 206 F.3d
529, 531 (5th Cir. 2000) (same).
As further support for this position, at trial the
government produced the “notice to alien ordered
removed/departure verification” (DHS Form I-296)
Hernandez-Quintania received after his removal in 2013.
The notice stated:
After your removal has been effected,
you must request and obtain permission from
the Secretary of Homeland Security to
reapply for admission to the United States
during the period indicated. You must obtain
such permission before commencing your
travel to the United States.
The government also produced evidence that
Hernandez-Quintania was deported as recently as 2015.
Additionally, the government provided testimony from
Hernandez-Quintania’s A-file custodian that two separate
immigration databases revealed no evidence that
Hernandez-Quintania requested permission to reenter the
United States after his last deportation. This evidence, when
considered in the light most favorable to the government, is
sufficient for the jury to find that Hernandez-Quintania was
in the United States without the consent of the Attorney
General or the Secretary of the Department of Homeland
Security.
UNITED STATES V. HERNANDEZ-QUINTANIA 9
II. Batson Challenge
Hernandez-Quintania challenges the district court’s
finding that he did not make a prima facie showing for his
Batson challenge. At trial, Hernandez-Quintania raised a
Batson challenge asserting the government impermissibly
struck two jurors based on their ethnicity.
In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the
Supreme Court found “the Equal Protection Clause forbids
the prosecutor to challenge potential jurors solely on account
of their race . . . .” Since Batson, the Supreme Court has
explained that trial courts should employ a three-step process
in adjudicating Batson claims:
First, a defendant must make a prima facie
showing that a peremptory challenge has
been exercised on the basis of race; second, if
that showing has been made, the prosecution
must offer a race-neutral basis for striking the
juror in question; and third, in light of the
parties' submissions, the trial court must
determine whether the defendant has shown
purposeful discrimination.
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (citing
Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).
To establish a prima facie case at step one, a defendant
must show “the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” Batson, 476 U.S. at93–94. “If the defendant fails to present sufficient evidence
to establish a prima facie case, the challenge may be denied
and the court need not continue to step two.” United States
v. Guerrero, 595 F.3d 1059, 1062 (9th Cir. 2010).
10 UNITED STATES V. HERNANDEZ-QUINTANIA
To establish a prima facie case, the defendant
must establish that (1) the prospective juror
who was removed is a member of a
cognizable group, (2) the prosecution
exercised a peremptory challenge to remove
the juror, and (3) “the facts and any other
relevant circumstances raise an inference”
that the challenge was motivated by race or
gender.
Cooperwood v. Cambra, 245 F.3d 1042, 1045–46 (9th Cir.
2001) (citing Batson, 476 U.S. at 96).
Hernandez-Quintania argues the district court committed
a structural error when it impermissibly speculated as to the
race-neutral reasons the prosecutor might have had for
striking the juror. Hernandez-Quintania also argues the
district court misapplied the standard at step one.
The district court started jury selection by providing each
juror a questionnaire asking for the juror’s name, marital
status, if they have any children over the age of eighteen,
whether they have friends or relatives in law enforcement, if
they have prior jury service, and if they can be fair and
impartial. During voir dire, each juror provided their
answers to those questions.
In total, the district court questioned thirty-four jurors
and dismissed one for cause. The parties then exercised their
peremptory challenges. The government struck two jurors,
both minorities, one with a Hispanic last name, the other
with the last name Gabuya. 2 Following jury selection,
counsel for Hernandez-Quintania approached the bench and
2
The record does not disclose additional strikes by the government.
UNITED STATES V. HERNANDEZ-QUINTANIA 11
raised a Batson challenge. The following exchange then
took place.
The Court: Okay. Looking – tell me what the
basis of the challenge is.
[Defense Counsel]: Both of those jurors are
minorities, so we would ask for the
government to offer their reason, a
nonprejudicial reason, for striking.
The Court: It appears to me that there are a
number of other minority jurors that are
going to be part of the jury. I don’t see
anything unusual about it, nothing that strikes
me as out of the ordinary. The fact that a juror
happens to be a minority is not, of itself,
prima facie proof. Is there anything else that
you have to support the challenge?
[Defense Counsel]: No, Your Honor. We
would ask the government be required to
state a reason.
The Court: I am not going to because I don’t
even find a prima facie case here. The
composition of the jury is very mixed in this
case. I could make my own personal
observations. One guy, Number 3, has a
weird hairdo, from my perspective. I don’t
know what it is. But there are all kinds of
neutral explanations that would explain his
challenge. So I don’t see it. No prima facie
case has been made. The Batson challenge is
denied.
12 UNITED STATES V. HERNANDEZ-QUINTANIA
After the jury was sworn in and at the next break, the
district court elaborated on its ruling. The district court
noted that Hernandez-Quintania’s sole basis for the
challenge was that “both jurors were apparent minorities.”
The district court observed that half the empaneled jury
“appear[ed] to be minorities so the fact that these two
particular jurors were of an apparent minority did not make
a prima facie case of wrongful exclusion.” The district court
also noted that Hernandez-Quintania excluded a number of
apparent minorities, so under that standard, “then they are
guilty of the same Batson violation.” Specifically, the
district court noted that Hernandez-Quintania excluded two
jurors with Spanish surnames, a South African immigrant
who became a United States citizen, and another juror who
was an apparent minority. Id. The district court reiterated
that “[w]e don’t get to step two in the Batson process, where
the Court requires a neutral explanation, unless I find a prima
facie case has been made, and I find no prima facie case was
made in this case.”
Hernandez-Quintania failed to support the Batson
challenge with any argument, other than the government
struck two jurors who appeared to be minorities. This fact
standing alone is not sufficient. See, e.g., Williams v.
Woodford, 384 F.3d 567, 584 (9th Cir. 2002) (“Using
peremptory challenges to strike Blacks does not end the
prima facie inquiry; it is not per se unconstitutional, without
more, to strike one or more Blacks from the jury . . . . A
district court must consider the relevant circumstances
surrounding a peremptory challenge”) (citations omitted);
United States v. Wills, 88 F.3d 704, 715 (9th Cir. 1996)
(claim that striking two African American jurors was not
enough for a prima facie case, particularly when several
African American jurors were empaneled).
UNITED STATES V. HERNANDEZ-QUINTANIA 13
Hernandez-Quintania did not argue that the two jurors
who appeared to be minorities were questioned differently,
that the government exercised a pattern of striking apparent
minority panel members, that the government struck a large
number of panel members from the same racial group, or that
the jury composition was disproportionate because of the
strikes. In fact, the record demonstrates that the jury
contained six apparent minority jurors and that Hernandez-
Quintania struck more minority jurors than the government.
The totality of the circumstances does not raise an inference
that the government’s challenges were racially motivated.
Hernandez-Quintania also argues the district court
erroneously “raised” the prima facie bar by stating, “I have
to be convinced that it’s at least – I won’t say likely, but
plausible that he was removed solely because of his minority
status. And here, I couldn’t reach that conclusion at all[.]”
This passing remark does not alter the record, which
supports the district court’s finding that Hernandez-
Quintania failed to offer any support or argument that the
government’s challenges were racially motivated.
Hernandez-Quintania failed to make a prima facie case
of discrimination. Because he did not meet step one of
Batson, there was no need for the district court to continue
to steps two and three. The district court’s comments
regarding the government’s possible reasons for striking the
jurors did not constitute structural error. The district court
properly denied the Batson challenge.
III. Revocation of Supervised Release
Hernandez-Quintania also appeals his related supervised
release revocation. As a result of his § 1326 conviction, the
district court found Hernandez-Quintania violated the terms
of his supervised release. Hernandez-Quintania’s only
14 UNITED STATES V. HERNANDEZ-QUINTANIA
challenge to his revocation is the alleged invalidity of his
§ 1326 conviction. Having affirmed Hernandez-Quintania’s
§ 1326 conviction, we also affirm his supervised release
revocation.
CONCLUSION
For the foregoing reasons, we AFFIRM Hernandez-
Quintania’s conviction and supervised release revocation.