United States v. Rosario Vazquez-Hernandez, 2017 U.S. App. LEXIS 3849

Defendant Rosario Vazquez-Hernandez, a Mexican national who regularly washed car windows in the pre-inspection area at the Mariposa port of entry, was arrested in April 2014 and convicted by a jury of attempted illegal reentry under 8 U.S.C. § 1326.
The pre-inspection area is on U.S. soil north of the border, walled and heavily surveilled by cameras and monitored by Border Patrol; vendors commonly enter that area on foot to solicit vehicles.
Vazquez-Hernandez had prior removals and a prior conviction for illegal reentry; he worked in the pre-inspection area frequently and was observed by agents on surveillance cameras before arrest.
The district court instructed the jury that the government must prove, inter alia, that the defendant “had the conscious desire to reenter the United States without consent” and took a substantial step; the instruction did not mention intent to enter “free from official restraint.”
Jurors asked whether the statute required intent to stay in the U.S.; the court referred them to the given instruction. The jury convicted; defendant appealed contending insufficient evidence and improper jury instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether omission of an instruction that "entry" requires intent to be free from official restraint was plain error	Government: instruction on "conscious desire to reenter without consent" was sufficient; substantial-step element uncontested	Vazquez-Hernandez: jury should have been instructed that attempted reentry requires intent to enter free from official restraint; omission was error	Court: Omission was plain error — instruction must tie specific intent to the object (entry free from official restraint); reversal required
Whether evidence was sufficient to prove intent to enter the U.S. free from official restraint	Government: agent testimony about defendant’s furtive conduct and proximity to lanes supported inference of intent to enter the U.S. past inspection	Vazquez-Hernandez: conduct consistent with lawful presence in pre-inspection area or attempts to avoid arrest; insufficient to prove intent to go beyond inspection points	Court: Even if properly instructed, no rational juror could find beyond a reasonable doubt that defendant intended to enter free from official restraint; conviction vacated and acquittal entered

United States v. Gaudin, 515 U.S. 506 (U.S. 1995) (jury must find every element of a crime beyond a reasonable doubt)
United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (requires explanation of specific intent in attempted § 1326 cases)
United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005) (§ 1326 is a specific intent crime requiring intent to reenter without consent)
United States v. Argueta-Rosales, 819 F.3d 1149 (9th Cir. 2016) (clarifies need to prove intent to enter free from official restraint)
United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) (physical presence alone is insufficient; continuous surveillance can negate "entry")
United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002) (continuous observation by agents can establish lack of freedom from official restraint)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (plain-error review under Federal Rule of Criminal Procedure 52(b))