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--------------------------------------------------------------------------------
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  

--------------------------------------------------------------------------------
 
Case Name:
USA V GRACIDAS-ULIBARRY 
Case Number: Date Filed: 
98-50610 11/07/00 

--------------------------------------------------------------------------------
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 98-50610
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-98-00254-HBT
ALFREDO GRACIDAS-ULIBARRY,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Howard B. Turrentine, Senior District Judge, Presiding

Argued and Submitted En Banc
June 20, 2000--San Francisco, California

Filed November 7, 2000

Before: Procter Hug, Jr., Chief Judge, Harry Pregerson,
Stephen Reinhardt, Ferdinand F. Fernandez,
Thomas G. Nelson, Andrew J. Kleinfeld, Sydney R. Thomas,
Susan P. Graber, William A. Fletcher, Raymond C. Fisher
and Richard A. Paez, Circuit Judges.

Opinion by Judge Fisher;
Concurrence by Judge Fernandez

_________________________________________________________________


COUNSEL

Steven F. Hubachek, Julie A. Blair, Federal Defenders of San
Diego, Inc., San Diego, California, for the defendant-
appellant.

Roger W. Haines, Assistant United States Attorney, Larry A.
Sebastian, Special Assistant United States Attorney, Criminal
Division, San Diego, California, for the plaintiff-appellee.

_________________________________________________________________

OPINION

FISHER, Circuit Judge:

Under 8 U.S.C. S 1326, a previously deported alien who

                               14309


"enters, attempts to enter, or is at any time found in" the
United States without the express consent of the Attorney
General is subject to a fine and imprisonment for up to two
years.1 In Pena-Cabanillas v. United States, 394 F.2d 785,
788-90 (9th Cir. 1968), we held that illegal reentry into the
United States under S 1326 required only a showing of gen-
eral intent because it was a malum prohibitum  regulatory
offense and the statute did not otherwise specify an intent
requirement for that crime.2 The question posed by this case,
however, is what level of intent must the government prove
to convict an alien of attempted illegal reentry under S 1326?
The statutory language for the crime of attempted illegal reen-
try differs from the language used for an accomplished illegal
reentry, because "attempt" is a term that at common law
requires proof that the defendant had the specific intent to
commit the underlying crime and took some overt act that was
a substantial step toward committing that crime. See, e.g.,
United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir. 1987).
_________________________________________________________________
1 8 U.S.C. S 1326(a) provides, as relevant here:

      [A]ny 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 terri-
      tory, the Attorney General has expressly consented to such
      alien's reapplying for admission; or (B) with respect to an alien
      previously denied admission and removed, unless such alien shall
      establish that he was not required to obtain such advance consent
      under this chapter or any prior Act,

      shall be fined under Title 18, or imprisoned not more than 2
      years, or both.
2 A malum prohibitum act is defined as one "that is a crime merely
because it is prohibited by statute, although the act itself is not necessarily
immoral." Black's Law Dictionary 971 (7th ed. 1999).

                               14310


Because we must assume Congress intended to incorporate
the well-established common law meaning of "attempt" into
S 1326 absent a contrary statutory command, we conclude the
crime of attempted illegal reentry into the United States
includes the common law element of specific intent.

FACTUAL and PROCEDURAL BACKGROUND

On the morning after he was deported from the Calexico,
California, port of entry, Alfredo Gracidas-Ulibarry
("Gracidas") was discovered riding as a passenger in the back
seat of a car being driven through the border checkpoint at the
San Ysidro, California, port of entry.3  At primary inspection,
an immigration inspector asked Gracidas about his citizen-
ship, to which he replied that he was a United States citizen.
When, upon further questioning, Gracidas failed to produce
identification or to explain how he became a citizen, the
inspector became suspicious and referred the car and its occu-
pants to secondary inspection.

At secondary inspection, Gracidas again claimed he was a
United States citizen, born in Texas, and gave his name as
"Arturo Cabral-Rodriguez." Gracidas said he did not have any
identification because his wallet had been stolen two weeks
earlier. After an inspector ran several computer checks and
informed Gracidas that the computer listed several possible
convictions for "Arturo Cabral-Rodriguez," Gracidas admit-
ted he was a Mexican citizen and had been previously
deported. The inspectors referred Gracidas to an Immigration
and Naturalization Service ("INS") prosecution unit, which
ran further computer checks and fingerprint comparisons
revealing Gracidas' true identity and that he had been
_________________________________________________________________
3 Even though the port of entry was located in the United States, Graci-
das had not yet reentered. An alien does not reenter, and cannot be consid-
ered found in, the United States until he or she is physically present in the
country and free from official restraint. See United States v. Pacheco-
Medina, 212 F.3d 1162, 1166 (9th Cir. 2000).

                               14311


deported just the previous day after having served two years
in prison for a felony conviction for sale of a controlled sub-
stance.

After being advised of his Miranda rights and deciding to
answer questions without the assistance of counsel, Gracidas
admitted to the inspectors his true name and that he had given
a false name at secondary inspection. Gracidas further con-
firmed his Mexican citizenship, his deportation the previous
day and his prison record. He also admitted knowing that he
needed to ask the U.S. government for permission to apply to
reenter the United States, but claimed he did not do so
because he urgently wanted to see his child, who resides in
the United States.

Gracidas was charged with attempted illegal reentry in vio-
lation of 8 U.S.C. S 1326, and with falsely and willfully repre-
senting himself as a citizen of the United States in violation
of 18 U.S.C. S 911.4 At trial, Gracidas contended he was
asleep when he was driven to the port of entry and thus he
never formed the specific intent to reenter the United States
illegally. Accordingly, he requested a jury instruction that
would have allowed the jury to find him guilty only if it con-
cluded beyond a reasonable doubt that Gracidas "intended to
reenter the United States without the consent of the Immigra-
tion and Naturalization Service."5 The district court rejected
the requested instruction and instead instructed the jury that
it should convict Gracidas if it found that he "attempted to
reenter the United States on or about December 5, 1997," and
did not have the requisite permission of the Attorney General.
The jury convicted Gracidas on both counts and, on appeal,
a majority of a three-member panel of this court upheld the
district court's instruction, holding that illegal attempt to reen-
ter under S 1326 requires proof only of general intent. See
_________________________________________________________________
4 Gracidas does not appeal his conviction under 18 U.S.C. S 911.
5 The INS has delegated authority under 8 C.F.R. S 2.1.

                               14312


United States v. Gracidas-Ulibarry, 192 F.3d 926, 929-30
(9th Cir. 1999).

Having reheard this case en banc, and reviewing de novo
whether the jury instruction misstated an element of the statu-
tory crime, see United States v. Gergen, 172 F.3d 719, 724
(9th Cir. 1999), we now conclude that the district court's
instruction was erroneous. We hold that the attempt prong of
S 1326 incorporates the well-established common law mean-
ing of "attempt" and requires proof of a specific intent to
enter illegally. We further conclude, however, that the errone-
ous instruction was harmless because uncontradicted and
overwhelming evidence demonstrated that Gracidas intended
to enter the United States without the express consent of the
Attorney General.6

DISCUSSION

I. Whether Attempted Illegal Reentry Under 8 U.S.C.
S 1326 is a General or Specific Intent Crime 

A. The Common Law Background of the Term "Attempt"

The common law meaning of "attempt" is the specific
intent to "engage in criminal conduct and . . . an overt act
which is a substantial step towards committing the crime."
Arbelaez, 812 F.2d at 534 (9th Cir. 1987); accord United
States v. Bailey, 444 U.S. 394, 405 (1980); Wooldridge v.
United States, 237 F. 775, 778-79 (9th Cir. 1916) (collecting
common law sources "holding that, to constitute an attempt,
there must be the intent to commit a crime and some act done
_________________________________________________________________
6 We adopt and thus reinstate the panel's conclusions that the evidence
was sufficient to support Gracidas' S 1326 conviction, that the district
court erred by failing to decrease Gracidas' offense level by a third point
for acceptance of responsibility under U.S. Sentencing Guidelines Manual
S 3E1.1(b)(1), and that the district court did not err in applying U.S.S.G.
S 2L1.2 to Gracidas' sentence under S 1326. See Gracidas-Ulibarry, 192
F.3d at 928, 931.

                               14313


toward its consummation, and that the term `attempt' signifies
both an act and the intent with which it is done"); Model
Penal Code & Commentaries S 5.01 cmt. at 305 (1985) (not-
ing that Code's definition of attempt "retains the common law
requirement of purposive conduct [the Code's term for spe-
cific intent] as a prerequisite for attempt liability"); Black's
Law Dictionary 123-24 (7th ed. 1999) (" `Every attempt is an
act done with intent to commit the offence so attempted.' ")
(quoting John Salmond, Jurisprudence 387 (Glanville L. Wil-
liams ed., 10th ed. 1947)); 2 Wayne R. LaFave & Austin W.
Scott, Jr., Substantive Criminal Law S 6.2, at 18 (1986) ("The
crime of attempt . . . [at] common law . . . consists of: (1) an
intent to do an act or to bring about certain consequences
which would in law amount to a crime; and (2) an act in fur-
therance of that intent which . . . goes beyond mere prepara-
tion."); Rollin M. Perkins & Ronald N. Boyce, Criminal Law
S 3.A.7, at 637 (3d ed. 1982) ("[A]n attempt to commit any
crime requires a specific intent to commit that particular
offense."); 4 Charles E. Torcia, Wharton's Criminal Law
S 693, at 580 (15th ed. 1996) ("At common law, a person
commits an attempt when, with intent to commit a particular
crime, he performs an act which tends toward but falls short
of consummation of such crime."). This accepted common
law definition is the basis for the doctrine that the crime of
attempt requires a showing of " `specific intent even if the
crime attempted does not.' " United States v. Hadley, 918
F.2d 848, 853 (9th Cir. 1990) (quoting United States v.
Sneezer, 900 F.2d 177, 179 (9th Cir. 1990)); accord 4 Torcia,
supra, S 695, at 591-97.

[1] Accordingly, we have held that Congress' use of the
term "attempts" in a criminal statute manifested a requirement
of specific intent to commit the crime attempted, even when
the statute did not contain an explicit intent requirement. For
example, we held in Sneezer that a conviction for attempted
sexual abuse under 18 U.S.C. S 2242 -- which imposes a
prison sentence of up to 20 years upon one who knowingly
causes another to engage in a sexual act against his or her will

                               14314


"or attempts to do so" -- required a finding of specific intent
to commit the crime even though the statute "itself d[id] not
appear to include any element of specific intent. " 900 F.2d at
179; accord Hadley, 918 F.2d at 853 (holding that attempted
aggravated sexual abuse under 18 U.S.C. S 2241, which
imposes a penalty upon one who uses force or threat to cause
another to engage in a sexual act "or attempts to do so,"
required a showing of specific intent even though the statute
contained no express intent requirement); Wooldridge, 237 F.
at 776, 778-79 (construing statute imposing a criminal penalty
if any person "attempts to commit any crime, . . . when no
other provision is made by law for the punishment of such
attempt," to require specific intent) (emphasis added) (internal
quotation marks and citation omitted). Similarly, in United
States v. Darby, 857 F.2d 623 (9th Cir. 1988), we held that
attempted bank robbery requires the specific intent to rob a
bank within the meaning of 18 U.S.C. S 2113(a), which pro-
vides that one who by force "takes, or attempts to take"
money from a bank may be imprisoned up to 20 years, even
though bank robbery itself is a general intent crime. See 857
F.2d at 626.

[2] The reason for requiring specific intent for attempt
crimes is to resolve the uncertainty whether the defendant's
purpose was indeed to engage in criminal, rather than inno-
cent, conduct. See Bailey, 444 U.S. at 405; United States v.
Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997). This uncer-
tainty is not present when the defendant has completed the
underlying crime, because the completed act is itself culpable
conduct. When the defendant's conduct does not constitute a
completed criminal act, however, a heightened intent require-
ment is necessary to ensure that the conduct is truly culpable.7
See Sneezer, 900 F.2d at 180.
_________________________________________________________________
7 Even when Congress has not used a common law term having an
implicit level of intent, a court will read into a statute at least a level of
intent or scienter necessary to separate wrongful from innocent conduct,
see United States v. Carter, _______ U.S. _______, _______, 120 S. Ct. 2159, 2169
(2000), mala prohibita regulatory offenses being an exception. See United
States v. Staples, 511 U.S. 600, 606 (1994); Bailey, 444 U.S. at 404 n.4;
Pena-Cabanillas, 394 F.2d at 788. Here, of course, S 1326 does use the
well-established common law term, "attempts."

                               14315


B. Whether Congress Intended to Incorporate the
Common Law Meaning of "Attempt" into Attempted Illegal
Reentry Under 8 U.S.C. S 1326

[3] In determining the level of mental culpability required
for a particular statutory offense, we must first look to the
intent of Congress. See Bailey, 444 U.S. at 406. Although
Congress did not include an explicit intent requirement for the
crime of illegal attempt to reenter in S 1326, the term "at-
tempts" implies the common law meaning that includes spe-
cific intent. When Congress has used a term that has a settled
common law meaning, " `a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the
established meaning' " of that term. Neder v. United States,
527 U.S. 1, 21 (1999) (quoting Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 322 (1992)); accord Morissette v.
United States, 342 U.S. 246, 263 (1952); Standard Oil Co. v.
United States, 221 U.S. 1, 59 (1911).

[4] Neither the text of S 1326 nor its legislative history
gives any indication that Congress intended not to incorporate
the common law meaning of the term "attempts" into the
crime of attempted illegal reentry. See 8 U.S.C. S 1326; H.R.
Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N.
1653, 1723-24; see also Pena-Cabanillas, 394 F.2d at 788-89
(noting that the legislative history of S 1326 is "barren" on the
issue of intent). Accordingly, we conclude Congress intended
an attempted reentry under S 1326 to be a crime of specific
intent. Cf. Neder, 527 U.S. at 22 (holding that use of term
"defraud" in 18 U.S.C. SS 1341, 1343 and 1344 demonstrated
congressional intent to incorporate the requirement of materi-
ality from common law meaning of fraud); Evans v. United
States, 504 U.S. 255, 268-69 (1992) (holding that Congress'
use of term "extortion" in 18 U.S.C. S 1951 incorporated
common law meaning of the term into the statute).

[5] Congress may have had good reason to incorporate the
common law meaning of attempt into the crime of attempted

                               14316


illegal reentry under S 1326. On the face of it, the common
law justification for requiring specific intent for an attempt
crime appears applicable to attempted illegal reentry; other-
wise, lawful conduct could be swept within the proscription
of the statute. For example, a person who has been deported
from the United States is authorized, within a specified period
after deportation, to request permission at a port of entry to
reapply for admission into the United States. See 8 C.F.R.
S 212.2(f). Moreover, certain forms for waivers from the
Attorney General to allow deported persons to return lawfully
to the United States are located and processed at ports of
entry. See, e.g., 8 C.F.R. SS 210.2(c), 210.3(e)(2), 211.1(b)(3),
212.1(g), 212.4(b), 212.10; 22 C.F.R. S 41.2(j). If attempted
illegal reentry were a general intent crime, a previously
deported alien intercepted on the way to, or even at, the port
of entry to make such a request or to pick up the forms could
be prosecuted under S 1326. True, the alien could try to
explain that his or her intent was to comply with the law, not
violate it; but the government would not have to prove beyond
a reasonable doubt that the alien's true purpose was to break
the law.

These concerns are not merely hypothetical. In United
States v. Morales-Tovar, 37 F. Supp. 2d 846 (W.D. Tex.
1999), the defendant entered a port of entry, presented his
Mexican birth certificate and asked to reapply for a resident
alien card. There was no evidence that he actually applied for
admission into the United States. See id. at 849. Nevertheless,
the government arrested him under S 1326, and argued at trial
his actions constituted an attempt to reenter illegally because
he had lost his permanent resident status when he was
deported two years earlier and was told he needed to obtain
permission from the Attorney General to reenter within the
next 20 years. The defendant argued he was merely following
the legal eprocedure for applying for a waiver to obtain a new
resident alien card so he could reenter lawfully. The Morales-
Tovar court, finding the explanations equally plausible, held
the government failed to demonstrate beyond a reasonable

                               14317


doubt that the defendant had the specific intent to reenter ille-
gally. See id. at 852-53. The court concluded that a showing
of specific intent was required because, otherwise,"any
proactive attempt to follow th[e] legally sanctioned proce-
dure" for seeking permission to reapply to reenter the United
States would "actually be [an] illegal`attempt' to reenter." Id.
at 851.

The government, however, argues that the common law
doctrine of attempt does not apply to this statutory crime.
Instead, it relies on our conclusion in Pena-Cabanillas that
actual, illegal reentry is a crime of general intent. It also
invokes our reasoning in Pena-Cabanillas that S 1326 pro-
vides for a malum prohibitum offense, and includes no
explicit language as to intent whereas Congress included
explicit intent requirements in other sections of the Immigra-
tion and Nationality Act of 1952 that enacted S 1326.8 Unlike
its use of the term "enters" in S 1326 for the crime of illegal
reentry, however, Congress' use of the term "attempts" does
not reflect silence as to intent but is consistent with a purpose
to "adopt[ ] the cluster of ideas that were attached to [the] bor-
rowed word in the body of learning from which it was taken."
Morissette, 342 U.S. at 263. This principle applies regardless
of whether the mental culpability requirement of the crime
attempted is general intent or mala prohibita  strict liability.
See 2 LaFave & Scott, supra, S 6.2(c)(3), at 28 ("[T]here is
no such thing as strict liability attempt.  . . . An attempt to
commit a strict liability offense is . . . possible only if it is
shown that the defendant acted with an intent to bring about
the proscribed result."). Thus, Pena-Cabanillas and the deci-
sions by this court and other circuits holding that only general
_________________________________________________________________
8 We noted in Pena-Cabanillas  that 8 U.S.C. SS 1287, 1306, 1324, 1325
and 1328 each used terms such as "knowingly,""wilfully," "unlawful
intent" and "purpose," which explicitly indicated specific intent was
required, while 8 U.S.C. SS 1306(b), 1306(c), 1321, 1322, 1323 and 1326
did not. 394 F.2d at 789 n.4. Pena-Cabanillas  did not, however, address
the intent requirement for S 1326 attempts.

                               14318


intent is required for the crime of illegal reentry into or being
found in the United States under 8 U.S.C. S 1326 are inapposite.9

The only other circuit to address, in a published opinion
binding in its own courts, the level of intent required for the
crime of attempted illegal reentry is the Eleventh Circuit,
which held in United States v. Peralt-Reyes, 131 F.3d 956
(11th Cir. 1997), that attempted illegal reentry is a general
intent crime.10 However, the Peralt-Reyes opinion provides no
analysis other than the court's adoption of the holding of an
unpublished First Circuit decision which has no precedential
value. See id. at 957 (citing and adopting the holding of
United States v. Reyes-Medina, No. 94-1923, 1995 WL
247343 (1st Cir. Apr. 25, 1995)). The unpublished First Cir-
cuit decision, in turn, did not analyze attempted illegal reentry
in S 1326 as a separate crime, but rather relied solely on cases
holding that illegal reentry is a general intent crime and
assumed they apply to attempted illegal reentry. See Reyes-
Medina, 1995 WL 247343, at *1 (relying on cases cited above
in note 5).
_________________________________________________________________
9 See, e.g., United States v. Martus, 138 F.3d 95, 97 (2d Cir. 1998) (ille-
gal reentry); United States v. Martinez-Morel , 118 F.3d 710, 713 (10th
Cir. 1997) (same); United States v. Henry, 111 F.3d 111, 113-14 (11th Cir.
1997) (same); United States v. Trevino-Martinez , 86 F.3d 65, 68 (5th Cir.
1996) (same); United States v. Leon-Leon, 35 F.3d 1428, 1432-33 (9th Cir.
1994) (same); United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994)
(found in the United States); United States v. Espinoza-Leon, 873 F.2d
743, 746 (4th Cir. 1989) (same); United States v. Hernandez, 693 F.2d
996, 1000 (10th Cir. 1982) (illegal reentry); United States v. Newton, 677
F.2d 16, 16-17 (2d Cir. 1982) (found in the United States); United States
v. Hussein, 675 F.2d 114, 115-16 (6th Cir. 1982) (illegal reentry); but cf.
United States v. Anton, 683 F.2d 1011, 1017 (7th Cir. 1982) (holding that
specific intent is required for illegal reentry under 8 U.S.C. S 1326).
10 In United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-33 (5th
Cir. 1993), the Fifth Circuit reviewed for sufficiency of the evidence a
conviction for attempted illegal reentry. The court concluded there was
sufficient evidence to sustain the jury's conclusion that the defendant
intended to reenter illegally. See id. at 1132. However, the court did not
specifically address the issue whether attempted reentry requires general
or specific intent.

                               14319


We find these decisions unpersuasive. They do not consider
the common law meaning of the term "attempt." Nor do they
provide any reason for concluding Congress intended not to
incorporate the common law meaning of the term into 8
U.S.C. S 1326.

Our conclusion is consistent with our recent decision in
Blanco-Gallegos. In Blanco-Gallegos, the defendant argued
he did not have the requisite intent for attempted illegal reen-
try under 8 U.S.C. S 1326 because he had become voluntarily
intoxicated and accidentally walked into the port of entry. See
188 F.3d at 1074. Significantly, we considered this defense on
its merits and concluded the jury properly rejected it as unsub-
stantiated. See id. at 1076. In so doing, we implicitly recog-
nized that attempted illegal reentry is a specific intent crime,
because voluntary intoxication is a defense only for such
crimes. See United States v. Burdeau, 168 F.3d 352, 356 (9th
Cir. 1999); Sayetsitty, 107 F.3d at 1411.

C. The Meaning of "Specific" Intent As an Element of
Attempt to Reenter Illegally Under 8 U.S.C. S 1326

Having concluded that attempted illegal reentry is a crime
of specific intent, an explanation of the meaning of specific
intent is necessary to give guidance as to the proper jury
instruction for this crime. As the Supreme Court has noted,
the distinction between specific intent and general intent "has
been the source of a good deal of confusion." Bailey, 444 U.S.
at 403. The practical difference between these two levels of
mental culpability is that certain defenses, such as voluntary
intoxication and subjective mistake of fact, can negate culpa-
bility only for specific intent crimes. See, e.g., Burdeau, 168
F.3d at 358 (voluntary intoxication); United States v. Leon-
Leon, 35 F.3d 1428, 1432-33 (9th Cir. 1994) (holding that
mistake of fact as to permission to reenter the United States
is not a defense to general intent crime of illegal reentry under

                               14320


8 U.S.C. S 1326); 1 LaFave & Scott, supra , SS 3.5(e), 4.10(a),
5.1(b), at 315, 552-53, 577-79.11

The confusion between general and specific intent has been
the catalyst for a movement to replace these categories with
a hierarchy of four levels of culpable states of mind, defined
with greater clarity: purpose, knowledge, recklessness and
negligence. See Bailey, 444 U.S. at 404; Model Penal Code
& Commentaries, supra, S 2.02, at 225-26; see also 1 LaFave
& Scott, supra, S 3.4(c), at 299-300. This movement is best
exemplified in the Model Penal Code, which the Supreme
Court has relied upon as a "source of guidance . . . to illumi-
nate" the meaning of and distinctions between intent require-
ments. United States v. United States Gypsum Co. , 438 U.S.
422, 444 (1978). In general, "purpose" corresponds to the
concept of specific intent, while "knowledge" corresponds to
general intent. See Bailey, 444 U.S. at 405; Model Penal Code
& Commentaries, supra, S 2.02 cmt. at 233-34. A person who
causes a result prohibited by common law or statute is said to
have acted purposely if he or she consciously desired that
result, whatever the likelihood of that result ensuing from his
or her actions. See Bailey, 444 U.S. at 404; United States
Gypsum, 438 U.S. at 444; Model Penal Code & Commen-
taries, supra, S 2.02, at 225.

[6] Applying these principles to the present case, we hold
the elements of the crime of attempted illegal reentry into the
United States under 8 U.S.C. S 1326 are: (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 substan-
_________________________________________________________________
11 As we recognized in Pena-Cabanillas, however, "[e]ven in a crime
requiring no specific intent, a defendant may defend upon the ground that
he did no voluntary act: that he was asleep or unconscious at the time an
act occurred." 394 F.2d at 788 n.2; see also Carter, _______ U.S. at _______, 120
S. Ct. at 2169 (noting that sleepwalking would be a defense to 18 U.S.C.
S 2113(a) even if it were a general intent crime).

                               14321


tial 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. See United States v. Davis , 960 F.2d 820,
826-27 (9th Cir. 1992) (enumerating the elements of attempt);
Arbelaez, 812 F.2d at 534 (same); Model Penal Code & Com-
mentaries, supra, S 5.01 cmt. at 301 ("The general principle
is thus that the actor must affirmatively desire to engage in the
conduct or to cause the result that will constitute the principal
offense."); see also United States v. Sotelo , 109 F.3d 1446,
1447 (9th Cir. 1997) (concluding that a lawful prior deporta-
tion is element of crime of illegal reentry under 8 U.S.C.
S 1326).

[7] We conclude the district court committed constitutional
error by failing to instruct the jury on the specific intent ele-
ment of the crime. See United States v. Fei Lin , 139 F.3d
1303, 1309 (9th Cir. 1998) (holding that failure to instruct as
to specific intent is constitutional error); Martinez v. Borg,
937 F.2d 422, 423 (9th Cir. 1991); see also United States v.
Gaudin, 515 U.S. 506, 510 (1995) (concluding that Due Pro-
cess Clause and Sixth Amendment require criminal convic-
tions to rest upon a jury determination that a defendant is
guilty of every element of the crime beyond a reasonable
doubt). The district court merely required the jury to find that
Gracidas "attempted to reenter the United States " without
defining "attempted" and without instructing the jury to make
any finding as to intent.12 An appropriate instruction would
_________________________________________________________________
12 Gracidas requested the following jury instruction:

      First, the defendant intended to reenter the United States without
      the consent of the Immigration and Nationalization Service; Sec-
      ond, the defendant did something which was a substantial step
      towards committing the crime; Third, the defendant is not a citi-
      zen or national of the United States; Fourth, the defendant was
      lawfully deported from the United States; Fifth, the defendant
      attempted to reenter the United States without the consent of the
      Immigration and Naturalization Service.

                               14322


have required the jury to find beyond a reasonable doubt that
Gracidas satisfied each of the five elements enumerated
above. Accordingly, Gracidas' conviction for attempted ille-
gal reentry must be reversed unless the error was harmless
beyond a reasonable doubt. See Neder, 527 U.S. at 15.

II. Harmless Error

The district court's failure to instruct the jury on the intent
element of the offense was harmless error if we conclude that
it is "clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error."
Neder, 527 U.S. at 18; see also Chapman v. California, 386
U.S. 18, 24 (1967) (concluding an error is harmless when it
appears "beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained"). In Neder, the
Supreme Court held that the omission of an element of a
crime from a jury instruction was harmless error when the
omitted element was uncontested and supported by over-
whelming evidence. See 527 U.S. at 17. Similarly, in this case
the government offered undisputed testimony by three INS
inspectors who dealt with Gracidas at the San Ysidro port of
entry that demonstrated his conscious desire to enter the
United States without first obtaining express consent.

[8] The INS inspectors testified that Gracidas admitted that
he had lied about being a U.S. citizen, that he gave INS
inspectors a false name and that he had recently been deported
after serving a sentence in the United States for a felony. Sig-
nificantly, Gracidas admitted he had not asked the U.S. gov-
ernment for permission to reenter because he wanted to see
his child, who was living in the United States, as soon as pos-
sible. The government also produced a certificate of nonexis-
tence of record based on Gracidas' INS A-file to demonstrate
that Gracidas was deported the day before he attempted to
reenter and had not applied for permission to reenter. See
Blanco-Gallegos, 188 F.3d at 1075 (holding that certificate of
nonexistence of record from INS A-file is sufficient evidence

                               14323


to demonstrate the defendant did not seek permission to reap-
ply to reenter the U.S.). Gracidas did not call any witnesses
to contradict any of the government's evidence. In the
absence of any evidence to the contrary, the government's
evidence is so overwhelming as to leave it beyond a reason-
able doubt that the verdict resting on the erroneous instruction
would have been the same in the absence of the error. See
Yates v. Evatt, 500 U.S. 391, 405 (1991); United States v.
Manuel, 706 F.2d 908, 915 (9th Cir. 1983) (holding that dis-
trict court's erroneous jury instruction was harmless because
uncontradicted evidence supported the conviction).

[9] Gracidas' defense, that he did not have specific intent
because he was asleep when the car was driven to the port of
entry, does not undermine this conclusion. Gracidas did not
support this defense with any evidence, and the INS inspector
at primary inspection testified that Gracidas was awake when
the inspector questioned him. See Neder, 527 U.S. at 19 (con-
cluding that error would not be harmless if "the defendant
contested the omitted element and raised evidence sufficient
to support a contrary finding") (emphasis added). Gracidas'
defense is contradicted by overwhelming evidence, including
his own admission that he purposely declined to ask for per-
mission to reapply for entry because he wanted to see his
child in the United States without delay. More importantly,
Gracidas certainly was awake when he admittedly misrepre-
sented his name and citizenship to the INS inspectors. We
therefore conclude the district court's failure to instruct the
jury as to specific intent was harmless beyond a reasonable
doubt.

CONCLUSION

We hold that a conviction for attempt to reenter the United
States without the consent of the Attorney General under 8
U.S.C. S 1326 requires a finding that the defendant con-
sciously desired to reenter the United States without consent.
Thus, we conclude the district court committed constitutional

                               14324


error when it failed to instruct the jury as to specific intent.
However, we hold this error was harmless beyond a reason-
able doubt because the overwhelming and uncontested evi-
dence demonstrated that Gracidas did consciously desire to
reenter the United States without consent. Finally, we adopt
the original panel's conclusions that the evidence was suffi-
cient to support Gracidas' S 1326 conviction, that the district
court erred by failing to decrease Gracidas' offense level by
a third point for acceptance of responsibility under U.S.S.G.
S 3E1.1(b)(1) and that the district court did not err by apply-
ing U.S.S.G. S 2L1.2 to Gracidas' sentence under S 1326.

AFFIRMED IN PART, REVERSED IN PART AND
REMANDED for further proceedings consistent with this
opinion.

_________________________________________________________________

FERNANDEZ, Circuit Judge, concurring:

Because I agree with the persuasive reasoning of the major-
ity opinion in United States v. Gracidas-Ulibarry, 192 F.3d
926 (9th Cir. 1999), which I now adopt, I concur in the result.

                               14325


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