83 F.4th 729
9th Cir.2023Background
- Juan Carlos Cabrera, a Salvadoran national deported in 2001, had prior §1326 convictions in 2015 and 2017 and attempted reentry in 2018; in 2019 he climbed the first of two U.S.–Mexico border fences and sat between the fences.
- Border Patrol Agent Joseph Cisneros encountered Cabrera about seven minutes later, questioned him in Spanish for roughly ten minutes (standing ~3 feet away), and Cabrera said he came “just for work.”
- Government charged Cabrera with attempted illegal entry (8 U.S.C. §1325) and attempted illegal reentry (8 U.S.C. §1326); the only contested issue at trial was Cabrera’s intent at the moment of crossing (whether he intended to “go at large” or intended only to be apprehended to pursue asylum).
- A jury convicted Cabrera on both counts; the district court sentenced him to 51 months and revoked supervised release from a prior case; Cabrera appealed.
- On appeal he challenged (1) admission of the un‑Mirandized statement, (2) exclusion of witness Erica Pinheiro, (3) the jury intent instruction ("dual intent" language), and (4) the Guidelines criminal‑history calculation for a 2015 time‑served sentence.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Cabrera) | Held |
|---|---|---|---|
| Admissibility of un‑Mirandized border statement | Stop was a permissible Terry stop under border precedent; questioning was brief and noncoercive so Miranda warnings unnecessary | Cabrera was "in custody" between fences and should have received Miranda warnings before questioning | Affirmed. Applied Galindo‑Gallegos/Terry framework; detention was brief (~10 min) and nonintrusive; question within Terry scope, so admission proper |
| Exclusion of Erica Pinheiro testimony | Testimony lacked link to Cabrera’s state of mind and risked a distracting mini‑trial about border conditions (Fed. R. Evid. 401/403) | Testimony would show widespread asylum backlog and explain motive to be apprehended rather than wait at port of entry | Affirmed. District court did not abuse discretion: insufficient evidentiary nexus to Cabrera’s knowledge and probative value outweighed by prejudice/distraction |
| Jury instruction on "dual intent" for §1326 | Instruction correctly states government need only prove intent to enter free from official restraint (not that it was sole intent); intent measured at crossing per Argueta‑Rosales | The additional phrasing ("part of his intention") confused jurors and allowed conviction without a "fully formed" intent to go at large | Affirmed. Instructions read as a whole tracked Argueta‑Rosales and correctly measured intent at the moment of crossing; not misleading |
| Criminal history points for 2015 time‑served sentence (overlap with 2017 custody) | District court reasonably included 134 overlapping days in the 2015 time‑served judgment based on sentencing record; thus 3 points were appropriate | Inclusion improperly double‑counts time already credited to 2017 sentence; §3585 prohibits credit already applied to another sentence | Affirmed. Court found district court’s factual finding reasonable; sentencing courts lack authority to grant §3585 credit (BOP handles credit), so no error; supervised‑release revocation stands |
Key Cases Cited
- United States v. Galindo‑Gallegos, 244 F.3d 728 (9th Cir. 2001) (applying Terry framework to border encounters and treating group/questioning in the open as noncustodial)
- Berkemer v. McCarty, 468 U.S. 420 (1984) (traffic‑stop analogy: ordinary stops are generally noncustodial for Miranda)
- Terry v. Ohio, 392 U.S. 1 (1968) (authorizes brief investigatory stops on reasonable suspicion)
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings required for custodial interrogation)
- United States v. Argueta‑Rosales, 819 F.3d 1149 (9th Cir. 2016) (for §1326 government must prove intent to go at large at moment of crossing; not required to be defendant’s sole intent)
- United States v. Booker, 543 U.S. 220 (2005) (made the Sentencing Guidelines advisory and reiterated the Guidelines’ continuing role in sentencing assessment)