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Case Name:
Case Number: Date Filed: 
99-50775 02/01/01 



                                                     No. 99-50775
                                                     D.C. No.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted
December 14, 2000--Pasadena, California

Filed February 1, 2001

Before: Pamela Ann Rymer, Thomas G. Nelson and
Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Rymer

Tony L. Cheng, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.

Anne Kristina Perry, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.

RYMER, Circuit Judge:

Gerardo Parga-Rosas appeals from his conviction and sen-
tence for being a deported alien "found in" the United States
in violation of 8 U.S.C. S 1326, contending among other
things that an indictment charging this offense is fatally
defective unless it alleges that the defendant voluntarily
entered the United States following his deportation. We con-
clude that an indictment which charges all statutory elements
of the offense (as this one does) -- that the defendant is an
alien; had been deported; was subsequently found in the
United States; and did not have the Attorney General's per-
mission to reapply for admission -- is sufficient. 1 Beyond
1 Section 1326(a) provides that "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


this, evidence that a deported alien was found in the United
States anywhere other than at the border suffices, in the
absence of any showing by the defendant that the entry was
in fact involuntary, for conviction on a "found in" offense.
Here, after being deported, Parga-Rosas was found well inside
the border, unquestionably free of official restraint, and never
claimed that voluntary re-entry had not actually occurred.
Accordingly, there is no basis for reversing Parga-Rosas's
conviction on the ground that the government failed to allege
or prove a voluntary entry.

As Parga-Rosas's remaining arguments do not require
reversal, we affirm.


Parga-Rosas was deported to Mexico from the United
States on October 14, 1998. On February 24, 1999, San Diego
Deputy Marshal Eddie Head was in the process of executing
a warrant on Tiffany Richards at an apartment complex in
Chula Vista, California. Parga-Rosas was there. When asked
for identification, Parga-Rosas produced a photocopy of an I-
551 "green card" issued in his name. Head contacted Border
Patrol Agent Joe Filippi about the photocopy and Filippi
asked that Parga-Rosas be detained. Filippi requested the "A"
registration file for the number on Parga-Rosas's I-551 card,
      (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 con-
      tiguous territory, 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


which showed that the card belonged to an individual who
was born in Mexico and had previously been deported. With-
out advising Parga-Rosas of his Miranda rights, Filippi ques-
tioned him about his alienage and immigration history and
Parga-Rosas admitted that he was a citizen of Mexico and was
illegally in the United States.

Parga-Rosas was then taken to the Border Patrol station
where he was read his Miranda rights, fingerprinted, and run
through the AFIS and IDENT computer systems (which main-
tains information on every INS apprehension). These checks
revealed that Parga-Rosas had previously been deported and
had a prior criminal history. He admitted both.

On March 24, 1999, the grand jury returned a one-count
indictment charging Parga-Rosas with being a deported alien
in the United States in violation of 8 U.S.C. S 1326.2 He
moved to dismiss the indictment and to suppress evidence as
the fruit of an illegal arrest. The district court denied the
motion to dismiss but suppressed all evidence except for

Parga-Rosas's identity, prior convictions and deportation.

On July 22, 1999 a fingerprint exemplar was taken from
Parga-Rosas which an examiner for the San Diego Police
Department compared with the Warrant of Deportation in
Parga-Rosas's "A" file. He determined that the fingerprints
matched. Parga-Rosas sought to suppress these exemplars as
well, but the court declined to do so on the ground that the
2 The indictment charges:

      On or about February 24, 1999, within the Southern District of
      California, defendant GERARDO PARGA-ROSAS, an alien,
      who previously had been excluded, deported and removed from
      the United States to Mexico, was found in the United States,
      without the Attorney General of the United States having
      expressly consented to the defendant's reapplication for admis-
      sion into the United States; in violation of Title 8, United States
      Code, Section 1326.


fingerprints were inextricably intertwined with Parga-Rosas's

The jury convicted Parga-Rosas and he was sentenced to 57
months imprisonment and three years supervised release. He
timely appealed.


[1] We start with Parga-Rosas's constitutional challenge to
S 1326. He argues that S 1326 is an unconstitutional status
offense as it can only be violated by deported aliens, thus pun-
ishing those individuals based upon their status. This argu-
ment is foreclosed by United States v. Ayala, 35 F.3d 423 (9th
Cir. 1994), cert. denied, 514 U.S. 1019 (1995). There we held
that "[a] conviction under S 1326 for being `found in' the
United States necessarily requires that a defendant commit an
act: he must re-enter the United States without permission
within five years after being deported." Id.  at 426.

[2] Parga-Rosas submits that we should disregard Ayala on
two grounds. First, he suggests that Ayala cannot control
because it has been undermined by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). He reasons that Ayala
was premised on the notion that the constitutional problems
created by a status offense are not implicated when applied to
conduct "which society has an interest in preventing," Ayala,
35 F.3d at 426 (quoting Powell v. Texas, 392 U.S. 514, 533
(1968)); Almendarez-Torres broadened the nature of the
offense by holding that S 1326(b)(2), which sets forth sen-
tencing enhancements for aggravated felons who re-enter ille-
gally, is not a separate offense from S 1326(a); and while
society may have an interest in preventing aggravated felons
from re-entering the country illegally, the mere act of re-entry
by a deported alien is relatively harmless and so society lacks
an interest in preventing deported aliens from being "found
in" the United States. Thus, as we understand his argument,
this leaves alienage itself, which is an involuntary status that


is unconstitutional to criminalize. However, this misses the
point of Ayala (and Powell); their "entire thrust" is that crimi-
nal penalties can be inflicted only if the accused "has commit-
ted some actus reus." Ayala, 35 F.3d at 426 (quoting Powell,
392 U.S. at 533). Here, Parga-Rosas is not being punished
because he has the status of being a deported alien; he is being
punished for having committed the act of re-entering the
United States without permission and staying here. Accord-
ingly, Ayala has not been overruled by Almendarez-Torres
and remains good law.

Second, Parga-Rosas argues that the government should be
bound by its previous description of S 1326 as a status offense
in United States v. Encarnacion, 56 F. Supp.2d 151 (D.P.R.
1999). This argument fails as well, because whether or not the
government is bound by whatever it argued in that case, we
are bound by Ayala.


Parga-Rosas next contends that the indictment failed to
state an offense because it did not allege that he voluntarily
re-entered the United States after deportation. In his view, the
crime of being a deported alien found in the United States
requires that the individual voluntarily re-enter the United
States after deportation, because we have stated that "[a]n
`entry' into the United States is required before a person is
`found in' the United States." United States v. Ruelas-
Arreguin, 219 F.3d 1056, 1061 (9th Cir.), cert. denied 121
S. Ct. 594 (2000) (citing United States v. Pacheco-Medina,
212 F.3d 1162, 1166 (9th Cir. 2000)). In the same vein, he
maintains that his conviction should be reversed because the
government failed to prove that he voluntarily entered the
United States following his deportation.

[3] Section 1326 sets forth three separate offenses for a
deported alien: to "enter," to "attempt to enter," and to be
"found in" the United States without permission. The "found


in" offense is distinct from the other two prohibited acts.
Pacheco-Medina, 212 F.3d at 1165 (citing United States v.
Hernandez, 189 F.3d 785, 789 (9th Cir. 1999); United States
v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996);
United States v. Rodriguez, 26 F.3d 4, 8 (1st Cir. 1994)).
Although re-entry is part of being found in the United States
and is "embedded in the `found in' offense, " Pacheco-
Medina, 212 F.3d at 1166, we have never suggested that the
crime of "entry" must be charged in order to charge the crime
of being "found in." Nor did we mean to prescribe a new rule
for pleading when we said in Pacheco-Medina that "an entry,
as defined legally, is required before a person is`found in' the
United States." 212 F.3d at 1166. Rather, we were simply
making clear that a person who has not legally entered the
country by being free of official restraint at the border logi-
cally "cannot have been found in a place he did not succeed
in entering." Id. We see no reason to invalidate Parga-Rosas's
indictment because it did not go further than charging the stat-
utory elements for being "found in" the United States. Alleg-
ing that the defendant is a deported alien subsequently found
in the United States without permission suffices. See United
States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995); United
States v. Musacchio, 968 F.2d 782, 787 (9th Cir. 1991)
(indictment that tracks the statute itself is generally suffi-

Even though it need not be pled, "entry" may nevertheless
become an important element of proof that an alien has been
"found in" the United States in some cases, primarily those
involving an apprehension at the border. In such cases, the
alien may physically be present in the United States yet be
deemed not to have "entered" if he is still under official
restraint at the time he is found. This stems from the legal fic-
tion that entry is not accomplished until a person is free from
official restraint. Thus, "[a]n alien's mere physical presence
on United States soil . . . is insufficient to convict him of
being found in the United States in violation of 8 U.S.C.
S 1326. Rather, the government must also establish that the


alien entered the United States free from official restraint at
the time officials discovered or apprehended him. " United
States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (cita-
tions omitted). Pacheco-Medina perfectly illustrates the prin-
ciple. Video surveillance detected Pacheco climbing a fence
at the border. An agent responded immediately, Pacheco
started to run, and he was captured within a few yards. He
was prosecuted for a "found in" offense. But, as we
explained, for him "[t]he bad news was that, because he was
never free from official restraint, he did not get in. The good
news was that, because he was never free from official
restraint, he did not commit the crime of being found in the
United States." 212 F.3d at 1166. For this reason, the evi-
dence was insufficient to convict. See also Ruiz-Lopez, 234
F.3d at 449 (reversing for insufficiency of the evidence to
prove that alien was free from official restraint during border

Parga-Rosas argues that voluntariness of re-entry has been
recognized as essential in non-border cases as well, pointing
to United States v. Quintana-Torres, _______ F.3d _______, 2000 WL
1876895 (9th Cir. Dec. 28, 2000), where we stated that "vol-
untariness of the return is an element of the crime and, as
such, must be proved beyond a reasonable doubt by the prose-
cution," id. at *2; United States v. Salazar-Robles, 207 F.3d
648, 650 (9th Cir. 2000); and Ruelas-Arreguin , 219 F.3d at
1061. However, Quintana-Torres involved sufficiency of the
evidence and Ruelas-Arreguin and Salazar-Robles were both
venue cases. In Ruelas-Arreguin, we were concerned with
whether venue could properly lie only in the district where the
defendant was "found" or whether it could also lie where he
entered the United States. In this context, we observed that the
crime of being "found in" the United States is a continuing
offense, starting with the illegal entry and being completed
with discovery. 219 F.3d at 1061. In Salazar-Robles, the
defendant was found in a state prison and contended that he
could not be convicted for the crime of being "found in" a
place that he did not voluntarily put himself in. We rejected


the argument, explaining that " `[b]eing found' is an element
of the offense; but it is a passive state, not requiring proof of
a voluntary act. The voluntary element consisted in Salazar-
Robles's return." 207 F.3d at 650. This, we noted, he did vol-
untarily, for at least the fifth time after five deportations. Nei-
ther Ruelas-Arreguin nor Salazar-Robles  suggests that
anything other than being "found in" the United States, which
is what makes the crime complete, must specifically be
alleged in the indictment.

[4] In Quintana-Torres, Quintana argued on appeal that his
"found in" conviction should be reversed for lack of evidence
that he voluntarily reentered the United States. Like Parga-
Rosas, Quintana relied on border cases such as Pacheco-
Medina. We surmised that other instances might be hypothe-
sized where an alien involuntarily enters the United States,
but recognized that "the likelihood of any of these possibili-
ties 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." 2000 WL 1876895 at *2. "To dispel the inference, the
alien would have to demonstrate that one of the speculative
possibilities of involuntary entry had actually taken place." Id.
Rather than impelling us to tack an "entry" charge onto a
"found in" charge, Quintana-Torres indicates that sufficient
evidence supported Parga-Rosas's conviction. Parga-Rosas
was found in Chula Vista, well within the United States bor-
der, and never claimed that he was under official restraint or
somehow came to be in Chula Vista involuntarily.

In sum, the indictment did not fail to state an offense, nor
must Parga-Rosas's conviction for being "found in " the
United States in violation of S 1326 be reversed, either
because the indictment failed specifically to allege a voluntary
re-entry or because the government failed to prove it beyond
a reasonable doubt.



We can summarily address Parga-Rosas's remaining con-

First, he maintains that his motion for judgment of acquittal
should have been granted because the government failed to
prove his alienage beyond a reasonable doubt. We disagree.
Proof of an Alien Registration File in his name, his applica-
tion for an immigrant visa, his notice to appear at a deporta-
tion hearing and order of deportation, his warrant of
deportation, a certificate of nonexistence of application for
legal re-entry, together with testimony by an immigration
officer that Parga-Rosas stated at his deportation hearing that
he was a native and citizen of Mexico, suffices. United States
v. Ramirez-Cortez, 213 F.3d 1149, 1158 (9th Cir. 2000).

Second, Parga-Rosas argues that the district court should
have suppressed the June 22, 1999 fingerprint exemplars as
the fruit of his unconstitutional arrest four months earlier.
Because the fingerprints were not taken for investigatory pur-
poses but for the sole purpose of proving Parga-Rosas's iden-
tity, the Fourth Amendment is not implicated. United States
v. Guzman-Bruno, 27 F.3d 420, 421 (9th Cir. 1994) (identity
of the defendant admissible even if statements were not).

Lastly, Parga-Rosas contends that because he was sen-
tenced under 8 U.S.C. S 1326(b)(2), which increased his stat-
utory maximum to 20 years, his sentence violates the rule set
forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). How-
ever, we held otherwise in United States v. Pacheco-Zapeda,
234 F.3d 411 (9th Cir. 2000).




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