United States v. Franco-Lopez
687 F.3d 1222
10th Cir.2012Background
- Franco-Lopez appeals a conviction for transporting an illegal alien under 8 U.S.C. § 1324(a)(1)(A)(ii).
- Mozqueda-Martinez was transported and was present illegally in the United States; Franco-Lopez was a passenger in the van.
- The district court instructed the jury that “entry” required (i) crossing into the United States, (ii) inspection/admission, or (iii) evasion of inspection, and that remaining under surveillance could negate entry.
- The government presented evidence that Mozqueda-Martinez crossed the border and was transported within the United States, though he was not observed crossing per se at the border.
- The jury found Franco-Lopez guilty on count three; the district court denied a judgment of acquittal, and the court ultimately affirmed and sentenced him to probation.
- The appeal is limited to whether proof of Mozqueda-Martinez’s entry was required to sustain § 1324(a)(1)(A)(ii)
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entry is required to prove §1324(a)(1)(A)(ii). | Franco-Lopez argues Mozqueda-Martinez never entered the U.S. | Franco-Lopez contends government must prove illegal entry per the immigration definition. | No; presence in violation suffices. |
| Whether the jury instruction requiring entry affected the verdict. | N/A (Franco-Lopez did not challenge the instruction). | N/A (not raised as a direct issue on appeal). | The instruction was broader than necessary and not reversible error; no prejudice shown. |
Key Cases Cited
- United States v. Barajas-Chavez, 162 F.3d 1285 (10th Cir. 1999) (proof of illegal presence suffices to convict when status is known)
- United States v. Hernandez-Garcia, 284 F.3d 1135 (9th Cir. 2002) (‘come to’ means come to the United States, not necessarily enter)
- United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005) (passengers’ illegality suffices to prove presence in the United States)
- United States v. Hernandez, 913 F.2d 568 (8th Cir. 1990) (aliens transported without papers can satisfy unlawfulness)
- United States v. Esparza, 882 F.2d 143 (5th Cir. 1989) (statute disjunctively proscribes coming to, entering, or remaining)
- United States v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996) (remains requires first having entered; related reasoning)
- United States v. Ortiz-Villegas, 49 F.3d 1435 (9th Cir. 1995) (same rationale for entry/remain distinction)