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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
99-50690 12/28/00 



UNITED STATES OF AMERICA,                             No. 99-50690
                                                     D.C. No.
v.                                                    CR-99-00210-IEG
Defendant-Appellant.                                  AMENDED

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted
August 9, 2000--Pasadena, California

Filed September 15, 2000
Amended December 28, 2000

Before: John T. Noonan, Stephen S. Trott and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Noonan


Steven F. Hubachek, Assistant Federal Public Defender, San
Diego, California, for the defendant-appellant.

Roger W. Haines, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.



The opinion filed on September 15, 2000 is amended as

Slip op. p.12075, l.9, add: "Alternatively, voluntarily
remaining in the country after an involuntary entry satisfies
the statute."

Slip op. p.12076, 1.7, add: "Apprendi argument. Quinta-
na's argument that Apprendi v. New Jersey, 120 S. Ct. 2348
(2000), overruled Almendarez-Torres v. United States, 523
U.S. 224 (1998), fails. See United States v. Pacheco-Zepeda,
No. 99-50720 (9th Cir. Dec. 6, 2000)."

With these amendments, the panel votes to deny the peti-
tions for rehearing. Judges Trott and Berzon have voted to
reject the suggestion for rehearing en banc and Judge Noonan
recommended rejection of the suggestion for rehearing en

The full court has been advised of the suggestion for en
banc rehearing, and no judge of the court has requested a vote
on the suggestion for rehearing en banc. Fed. R. App. P.

The petitions for rehearing are DENIED, and the sugges-
tion for rehearing en banc is REJECTED.

NOONAN, Circuit Judge:

Jose Fernando Quintana-Torres appeals his conviction of
being a deported alien found in the United States in violation
of 8 U.S.C. S 1326(a) and (b)(2). Quintana contends that the


government did not produce evidence that he had entered the
United States voluntarily. We hold that the evidence of his
being in the United States a distance from the border was suf-
ficient in this case to justify any reasonable juror inferring that
he had voluntarily entered the United States. We affirm the
judgment of the district court.


Quintana was born in Tijuana, Baja California, Mexico. On
June 24, 1994 he was deported from the United States. On
August 28, 1996, he was encountered by an agent of the
Immigration and Naturalization Service in San Diego, Cali-


On January 27, 1999, Quintana was indicted for violation
of 8 U.S.C. S 1326(a) and (b)(2). On May 4, 1999, he was
tried by a jury. He introduced no evidence in his defense. At
the conclusion of the government's case, he moved for acquit-
tal under Fed. R. Crim. P. 29. In explanation of this motion,
counsel objected to a date on Quintana's birth certificate that
was different from the date on the government's certificate
that he had not applied for permission to reenter. The court
denied the motion. The jury returned a verdict of guilty.

At the sentencing hearing on October 1, 1999, Quintana
was shown to have committed an aggravated felony, increas-
ing his sentence. Counsel argued that he should be given
credit for acceptance of responsibility because, after he was
discovered in the country, he was interviewed by an INS
inspector and swore that he was an alien, who had been
deported and not received permission to reenter. Counsel
stated: "Basically he fessed up to everything -- to all the ele-
ments of 1326." (This sworn statement was taken in Donovan
State Prison, a fact that had been excluded from consideration
by the jury). The court granted him a departure downward for


his acceptance of responsibility. Counsel pointed out that
Quintana was not prosecuted federally until his state sentence
had been served, so that he had lost the chance of serving part
of a federal sentence concurrently with a state sentence.
Counsel asked for a sentence of 5 years, 3 months. The gov-
ernment took a neutral position on this request. After granting
him 3 points for acceptance of responsibility, the court noted
that the sentencing range was 63 to 78 months. The court
departed downward 2 levels and sentenced him to imprison-
ment of five years and ten months and three years of super-
vised release.

Quintana appeals.


Quintana's Voluntary Reentry. On appeal, Quintana argues
as a ground for reversal the lack of evidence that he voluntar-
ily reentered the United States after his deportation in 1994.
This ground was not advanced when he made his motion for
acquittal on one specified ground. The objection now
advanced was waived. See United States v. Reyes-Alvarado,
963 F.2d 1184, 1187 (9th Cir. 1992). An exception to the rule
exists where review is necessary to prevent a manifest miscar-
riage of justice. Id. However, Quintana has not shown that
such a miscarriage has occurred here.

[1] The government argues that it did not have to prove that
Quintana intentionally reentered this country. That cannot be
right. There is no crime without an intentional act of some
kind. No crime without volition is the foundational axiom of
our criminal law. We have already held in a case construing
S 1326 that "being found" within the meaning of the statute
"is a passive state, not requiring proof of a voluntary act."
United States v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir.
2000). We added that "the voluntary element" of the crime
consists in the return that is prohibited by the statute. Id.
Therefore, the voluntariness of the return is an element of the


crime and, as such, must be proved beyond a reasonable doubt
by the prosecution. Alternatively, voluntarily remaining in the
country after an involuntary entry satisfies the statute.

Quintana relies on cases where an alien was apprehended
at the border to show that voluntariness of entry will not exist
if an alien is "in the clutches" of the government from the
very moment he sets foot on American soil. E.g. United States
v. Pacheco-Medina, 212 F.3d 1162, 1165 (9th Cir. 2000).
Other cases may be hypothesized where an alien involuntarily
enters the United States -- he is extradited here against his
will; he is paroled in by the proper authorities; he is sleeping
on a train which against his expectation enters this country; he
is on a plane flying over United States territory which has
engine trouble and makes an emergency landing at an airport
here. All these possibilities show that it is not a 100% cer-
tainty that an alien discovered a distance from the border
arrived of his own volition.

[2] On the other hand, the likelihood of any of these possi-
bilities happening is such that a reasonable juror may well
infer that the alien had the intention to be here when the alien
is discovered at any location in the country other than the bor-
der. Such a conclusion is not a presumption of law. It is cir-
cumstantial proof that is convincing unless explained away,
much as a face covered by jam near a jam jar is convincing
proof of jam-eating unless otherwise explained. There is an
inference that a reasonable mind could accept as true beyond
a reasonable doubt. To dispel the inference, the alien would
have to demonstrate that one of the speculative possibilities of
involuntary entry had actually taken place. Quintana made no
such showing. His admission of "all the elements " of a S 1326
violation, introduced by him at sentencing, means that, even
if contrary to the conclusion we have reached we accepted his
contention, there would be no unfairness in not recognizing
any error. See United States v. Olano, 507 U.S. 725, 736

Apprendi argument. Quintana's argument that Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000), overruled Almendarez-
Torres v. United States, 523 U.S. 224 (1998), fails. See United
States v. Pacheco-Zepeda, No. 99-50720 (9th Cir. Dec. 6,

Quintana's Alienage. Quintana renews his attack on the
birth certificate, but it was up to the jury to decide whether the
different date on it was of significance. The government also
introduced as evidence of his alienage other documents show-
ing his 1994 deportation. No objection was made to their
introduction. They constituted admissible evidence. See
United States v. Loyola-Dominguez, 125 F.3d 1315, 1317-18
(9th Cir. 1997). From the documents a rational juror could
infer that Quintana was an alien who had had no defense to
his earlier deportation.