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--------------------------------------------------------------------------------
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
--------------------------------------------------------------------------------
Case Name:
USA V RUIZ-LOPEZ 
Case Number: Date Filed: 
98-50599 01/03/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                             No. 98-50599
Plaintiff-Appellee,
                                                     D.C. No.
v.                                                    CR-98-00243-I-HBT

PEDRO RUIZ-LOPEZ,                                     ORDER AND
Defendant-Appellant.                                  AMENDED OPINION

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

Argued and Submitted
September 13, 2000--Pasadena, California

Filed December 8, 2000
Amended January 3, 2001

Before: Harry Pregerson, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould
_________________________________________________________________
COUNSEL

Carolyn Chapman, Law Offices of Carolyn Chapman, Coro-
nado, California, for the defendant-appellant.

                               58

Jaime Suarez, United States Department of Justice, and
Suzanne Ramos, Office of the United States Attorney, San
Diego, California, for the plaintiff-appellee.
_________________________________________________________________
ORDER

It is hereby ordered that the above entitled opinion filed on
December 8, 2000, be amended as follows:

The following language shall be inserted immediately at the
end of the paragraph on slip opinion page 15705 which ends
with ". . . because the alien was under official restraint the
whole time. Id. at 1165.":

Compare United States v. Quintana-Torres, 224 F.3d 1157,
1159 (9th Cir. 2000) (where there is no evidence of constant
surveillance by government officials, the unexplained pres-
ence of an alien some distance from the border is sufficient
to justify a reasonable juror in finding voluntary entry into the
United States).
_________________________________________________________________
OPINION

GOULD, Circuit Judge:

Pedro Ruiz-Lopez ("Ruiz-Lopez") appeals his conviction
and sentence for being an alien "found in" the United States
after deportation following an aggravated felony conviction in
violation of 8 U.S.C. S 1326(a) and (b)(2). Ruiz-Lopez main-
tains that there is insufficient evidence to conclude beyond a
reasonable doubt that he was found in the United States.1 We
agree and reverse and remand for entry of an acquittal.
_________________________________________________________________
1 Ruiz-Lopez raises several issues besides sufficiency of the evidence.
Among them is a claim that his underlying deportation was invalid
because his due process rights were violated during the deportation pro-
ceedings. Others include challenges to the district court's imposition of a
16-level sentence enhancement and its refusal to grant Ruiz-Lopez a
downward departure in sentencing. In light of our disposition of the pri-
mary claim, we need not and do not decide these issues.

                               59

FACTS AND PROCEDURAL HISTORY

Ruiz-Lopez illegally entered the United States in 1979.
Between 1979 and 1994, he was charged with and convicted
of, inter alia, burglary, petty theft, possession of a controlled
substance, auto theft, and receiving stolen property. In April
1994, after his second conviction for possession of a con-
trolled substance, Ruiz-Lopez was brought before an immi-
gration judge ("IJ") at a multiple deportation hearing. Ruiz-
Lopez was advised of his right to appeal, but he waived that
right, and the IJ ordered him deported to Mexico.

On December 1, 1997, Ruiz-Lopez was discovered in the
United States, arrested, and then transported to the United
States border patrol processing center in Tecate, California.
At the processing center, border patrol agents determined that
Ruiz-Lopez is a citizen of Mexico who had been deported and
removed to Mexico in 1994. The agents referred Ruiz-Lopez
for criminal prosecution. The government charged Ruiz-
Lopez with being an alien found in the United States after
deportation following an aggravated felony conviction in vio-
lation of 8 U.S.C. S 1326(a) and (b)(2).

At trial, the government presented only one witness during
its case-in-chief who testified as to whether Ruiz-Lopez had
been found in the United States. Border patrol agent Christo-
pher Thompson testified that on December 1, 1997, he was
assigned to the Tecate processing center when he received a
telephone call from the Tecate port of entry requesting him to
pick up Ruiz-Lopez. Thompson testified on cross-
examination that when he arrived at the Tecate port of entry,
Ruiz-Lopez was located inside a room in the port of entry
where other immigration inspectors were completing busi-
ness.

At the conclusion of the government's case-in-chief, Ruiz-
Lopez moved for a judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29, alleging the government had

                               60

not proved beyond a reasonable doubt that he had been found
in the United States in violation of 8 U.S.C. S 1326. Specifi-
cally, Ruiz-Lopez argued:

      [I]f a defendant is in the port of entry in the process-
      ing center he hasn't performed an entry. It's an
      attempted entry and it's completely different than an
      actual entry, which he needs to be free from official
      restraint and he needs to be out of continuing sur-
      veillance.

The district court agreed with Ruiz-Lopez, stating to the pros-
ecutor, "[y]ou haven't shown he was arrested in the United
States. All you've shown was he was in the port of entry."
However, the court allowed the government to reopen its
case.

The government then presented testimony from INS
inspector Steven Phillips, the immigration official recorded as
making the arrest of Ruiz-Lopez. Phillips had no specific rec-
ollection of arresting Ruiz-Lopez. He described his standard
practice of arresting suspected illegal entrants. Phillips testi-
fied that it was his custom to watch the Tecate port of entry
for individuals trying to enter illegally through the south-
bound pedestrian lane. This exchange followed:

      Q: So, if someone snuck through the southbound
      lane and you found them on the U.S. side of the bor-
      der, what would you do? What steps would you
      take?

      A: I would have approached that person. Typically,
      they would make a bee-line, so to speak, into the
      commercial establishment there, the shopping center.
      And I would have asked questions regarding their
      admissibility for Immigration purposes, whether or
      not they had a document, what their citizenship was.

                               61

After this additional testimony, Ruiz-Lopez renewed his Rule
29 motion for judgment of acquittal. The district court denied
the motion, reasoning "it's pretty obvious that he was found
in the United States . . . ."

The jury ultimately found Ruiz-Lopez guilty of being an
alien found in the United States after deportation following an
aggravated felony conviction in violation of 8 U.S.C.
S 1326(a) and (b)(2). Pursuant to United States Sentencing
Guideline (U.S.S.G.) section 2L1.1(b)(1)(A), the district court
enhanced Ruiz-Lopez's sentence 16 levels because of his
1991 conviction for violation of California Vehicle Code sec-
tion 10851(a), which the court determined was an aggravated
felony. The court sentenced Ruiz-Lopez to a 77-month prison
term.

Ruiz-Lopez appeals. We have jurisdiction pursuant to 28
U.S.C. S 1291 and reverse.

DISCUSSION

We review de novo the district court's denial of a Rule 29
motion for judgment of acquittal. This standard requires us to
"review the evidence presented against the defendant in the
light most favorable to the government to determine whether
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt." United States
v. Sarkisian, 197 F.3d 966, 984 (9th Cir. 1999) (citations
internal quotation marks omitted).

Ruiz-Lopez contends that the district court erroneously
denied his motion for judgment of acquittal pursuant to Fed-
eral Rule of Criminal Procedure 29 because there is insuffi-
cient evidence to conclude beyond a reasonable doubt that he
was found in the United States in violation of 8 U.S.C.
S 1326. We agree.

[1] It is a crime for any alien who has been previously
deported to enter, attempt to enter, or at any time be found in

                               62

the United States without the consent of the Attorney General.
8 U.S.C. S 1326(a). An alien's mere physical presence on
United States soil, however, is insufficient to convict him of
being found in the United States in violation of 8 U.S.C.
S 1326. United States v. Pacheco-Medina , 212 F.3d 1162,
1163 (9th Cir. 2000). Rather, the government must also estab-
lish that the alien entered the United States free from official
restraint at the time officials discovered or apprehended him.
Id. at 1164.

[2] Our precedent in this circuit requires that we construe
restraint broadly to include constant government surveillance
of an alien, regardless of whether the alien was aware of the
surveillance or intended to evade inspection.

      [T]he restraint may take the form of surveillance,
      unbeknownst to the alien; he has still not made an
      entry despite having crossed the border with the
      intention of evading inspection, because he lacks the
      freedom to go at large and mix with the population.

Id. (quoting Matter of Pierre, 14 I. & N. Dec. 467, 469 (BIA
1973)). If a government official has an alien under surveil-
lance from the moment he passes the port of entry until the
moment of arrest, the alien has not "entered" the United
States--even if his arrest occurred at a point well past the port
of entry--because the alien was under official restraint the
whole time. Id. at 1165. Compare United States v. Quintana-
Torres, 224 F.3d 1157, 1159 (9th Cir. 2000) (where there is
no evidence of constant surveillance by government officials,
the unexplained presence of an alien some distance from the
border is sufficient to justify a reasonable juror in finding vol-
untary entry into the United States).

[3] Here, when this rule is applied, the evidence presented
at trial does not establish beyond a reasonable doubt that
Ruiz-Lopez entered the United States free from official
restraint such that he could be properly convicted of being

                               63

found in the United States in violation of 8 U.S.C.S 1326.
The government presented only two witnesses who testified
to whether Ruiz-Lopez was found in the United States. The
first witness, border patrol agent Thompson, testified that he
came into contact with Ruiz-Lopez at the port of entry after
a different official had arrested Ruiz-Lopez. This evidence,
the district court correctly determined, establishes that
Thompson encountered Ruiz-Lopez at the port of entry but is
wholly insufficient to prove that officials found Ruiz-Lopez
in the United States free from official restraint.

The second witness, immigration inspector Phillips, is the
immigration official recorded as arresting Ruiz-Lopez. Phil-
lips candidly admitted that he did not recall arresting Ruiz-
Lopez, but testified that it was his general practice to watch
a suspected illegal alien attempt to sneak across the border
and then to approach the individual and determine his or her
admissibility for immigration purposes. Such testimony of a
habitual practice by reasonable inference is probative on the
specific issue of the arrest of Ruiz-Lopez. Fed. R. Evid. 406.
However, Phillips' standard practice of observing individuals
attempt to enter the United States, following, and then ques-
tioning them, also necessarily implies that he closely monitors
these suspects at all times.2 This type of constant surveillance
falls within our circuit's precedent defining official restraint,
foreclosing a determination that Ruiz-Lopez entered the
_________________________________________________________________
2 Although Phillips testified only to his customary practice, the day
before his testimony, the government, in connection with Ruiz-Lopez's
motion challenging probable cause, stated to the court:

      Your Honor, the arresting officer observed Defendant walk
      across the border and run into a grocery store to hide, and then
      he went into the grocery store in pursuit and arrested him in the
      United States, having watched him illegally enter the United
      States.

(emphasis added). If accurate, this statement demonstrates that Ruiz-
Lopez was not at any time free "to go at large and mix with the popula-
tion." Pacheco-Medina, 212 F.3d at 1164.

                               64

United States in violation of 8 U.S.C. S 1326. Pacheco-
Medina, 212 F.3d at 1164.

[4] We conclude that based on this evidence, no rational
trier of fact could have found beyond a reasonable doubt that
Ruiz-Lopez was found in the United States free from official
restraint in violation of 8 U.S.C. S 1326.

CONCLUSION

We reverse the denial of Ruiz-Lopez's motion for judgment
of acquittal and remand for entry of acquittal.

REVERSED, and REMANDED.

                               65



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