*1 jail discipline. what the tries to do about hand, majority may the other be
On
wrong. might The evidence establish purpose nudity frontal of the ban on punish
pictures prisoners is them, proved by express as is
rehabilitate or excessiveness relative to
declarations jail. A goal preserving order good way
trial is a to find out. Arizona people
has to convict these before it is punish
entitled to and rehabilitate them. Queen’s in-
We must not follow the Red
junction, after- “sentence first —verdict ward.” America,
UNITED STATES of
Plaintiff-Appellee, Guadalupe BLANCO-GALLEGOS,
Jose
Defendant-Appellant.
No. 98-50136. Appeals,
United States Court of Circuit.
Ninth
Argued and Submitted Feb. April
Memorandum Filed Opinion1 Aug.
Order and Filed Carroll, concurrently Opinion Lewis Alice’s Adventures' in Won- milted with this (Random 1946). derland 146 House Redesignating Disposi- Order Memorandum Opinion. tion to an April hereby 1. The dissent filed being withdrawn. A revised dissent is trans- *2 Hubachek, F. Federal Defenders
Steven California, Inc., Diego, Diego, of San San defendant-appellant. (On Briefs), Black Assis- Virginia A. George Attorney; and tant United States Hardy (Argued), D. Assistant California, a controlled Attorney, Diego, possessing ed of substance San plaintiff-appellee. engaging and for lewd acts with sale child, however, Blanco-Gallegos lost his and was de- permanent residence status ported illegally in 1994. He reentered the *3 deported in again United States and was day deportation, The after 1996. this Blanco-Gallegos entered the San Ysidro KOZINSKI, NELSON, D. Before: W. TROTT, Entry falsely and claimed to be a Port of Judges. and Circuit citizen, born in Puerto Rico. United States TROTT; Opinion by Judge Partial the border authorities discovered When by Judge and Partial Dissent Concurrence identity, Blanco-Gallegos his true was ar- D.W. NELSON. attempting to reenter the rested for Unit- deportation after in of 8 ed States violation ORDER waiving § 1326. After his Miranda U.S.C. disposition April The memorandum filed rights, Blanco-Gallegos told the INS offi- 1, 1999, redesignated as an authored Mexico, cers that he was a citizen of had Trott, opinion by Judge and the dissent States, legal right no to be the United April A filed is withdrawn. re- deported day and had been before. opinion. vised dissent be filed with the will Blanco-Gallegos was indicted under OPINION § attempted reentery. 1326 for his At trial, the district court admitted into evi- TROTT, Judge: Circuit govern- dence a between the OVERVIEW Blanco-Gallegos, provided ment and had been convicted (“Blan- Guadalupe Blanco-Gallegos Jose aggravated felony. Blanco-Galle- co-Gallegos”) appeals his conviction gos’s defense was that he did not intend to attempting sentence for to reenter States, gotten reenter the United but had deportation after United States in violation accidentally of 8 U.S.C. ar- drunk and walked into the (1) that: gues there was insufficient evi- port rejected entry. jury this de- prove Attorney dence at trial to that the fense, was convicted. applica- General had not consented to his sentencing, granted At the district court (2) States; reentry tion for into the United Blanco-Gallegos a two-level reduction in admitting the district court erred in into acceptance responsibili- offense level for proof evidence had ty but him refused award an additional aggravated felony; been convicted of an providing timely reduction for and com- (3) by assessing the district court erred plete concerning information his role in the history points criminal for the aggravated appeal offense. This followed. (4) 4A1.2; under U.S.S.G. district court erred in refusing award an I. Sufficiency of the Evidence additional reduction offense attempted To establish a ease acceptance responsibility level for under illegal reentry deportation, gov after jurisdiction U.S.S.G. 3E1.1. We have Attorney ernment must pursuant to 18 3742 and U.S.C. General had not consented to the alien’s in part, we affirm re- application reentry. Blanco-Gallegos for part, verse in and remand.
argues that there was insufficient evidence
BACKGROUND
support
this element of the crime.
There
support
is sufficient evidence to
Blanco-Gallegos is a citizen of Mexico
if, viewing
the evidence in the
legally
who
entered the
as a
permanent
being
resident. After
prosecution,
convict-
most favorable to the
immigration
have found
for
matters
of fact could
rational
trier
permission
beyond
processing applications
essential elements
Nelson,
doubt. reapply
for admission into the United
1094, 1103
States,
reasonably
infer
application
from the lack of an
in the INS’s
government offered
At
application
A-File that
such
existed.
non-existence,” which stated
“certificate of
Oris,
As the Fifth Circuit said
“[b]e-
A-File,2 which
Blaneo-Gallegos’s INS
cause the
is the branch of the
Justice
the records of
contains
Department
Attorney
to which the
General
with the United
did
contacts
responsibilities
his
over im-
delegated
has
permission
reap
request
include
matters,
migration
jury could reason-
testimo
also offered
ply.
*4
any
ably
expression
conclude that
of the
stated that
it
agent
an INS
who
ny from
Attorney
appear
would
General’s consent
keep complete
to
rec
duty
was
INS’s
regarding
in the INS files. Evidence
oth-
contact with the
having
on all aliens
ords
unnec-
Department
er Justice
records was
States, and that
the A-File con
United
essary.”
with
C.F.R.
law,
see
then-existing
with
Ninth Circuit
2.1, 103.1(f)(3)(iii)(E),
(g)(3)(iii)(B).
§§
103.1
Gonzalez-Medina,
v.
United States
976
Attorney
The
General has
dele-
570,
Cir.1992), admitting evi
572
authority
adjudicate applica-
gated her
has since
prior felony
dence of a
permission
reapply
for admis-
tions for
Almenda
been held to be erroneous. See
sion into the United States to the INS. See
224,
v.
rez-Torres
523 U.S.
103.1(f)(3)(iii)(E),
§§
8
C.F.R.
1226,
1219,
Although admission Sentencing Conviction aggra- defendant had been convicted preju- always carries a risk of vated crime argues that dice, at 118 S.Ct. assessing both a court erred district prejudice to Blanco- in this case increase in offense level and sixteen-level Indeed, minor and sanitized. Gallegos was points single for a history three criminal was convict- the fact A district criminal conviction. court’s prior aggravated felony ed of terpretation sentencing guidelines in a more sanitized have been introduced novo. v. Bai reviewed de way. The nature of the ley, was convicted for which was not discussed. §to and based Pursuant during the only mentioned three times possession of a con on his conviction for en- trial: once when sale, trolled substance for Blanco-Galle record, prosecu- in the tered into the once gos’s offense level was increased sixteen *5 why Blanco- closing explaining tion’s when given levels. was also deported, had been and once Gallegos history for that same points three criminal prosecution’s closing in when again the Blanco-Gallegos argues that conviction. charged element reviewing each of this conviction was used to because suggest did not crime. The level, crease the offense it should not be credibility impaired Blanco-Gallegos’s history to increase his criminal level used testimony not be be- or that his should well. After filed his as lieved because he had been convicted argument, we re appeal, but before oral felony. jected argument in States v. Additionally, the evidence of Blanco- Luna-Heirera, 149 F.3d Gallegos’s guilt in this case was over- Cir.1998). in this We follow decision trial, whelming. At § commentary 2L1.2 of the case. voluntarily only defense was that he was provides Sentencing Guidelines and had intention of enter- intoxicated (b) adjustment under subsection “[a]n However, ing the United States. when he ... of after a [deportation defendant port entry, Blanco-Gallegos entered the of applies in addition to conviction] say try had a or did he made mistake history points criminal added for such con exit the In- building. to turn around and 2L1.2, § viction.” cmt. 4. The U.S.S.G. stead, Blanco-Gallegos port entered the of following district court did not err in this line, entry, approached in waited INS plain language. agent told that he was a agent, the INS citizen, Rico, born in Puerto Acceptance Responsibility of IV. and, identification, gave when asked for Finally, Blanco-Gallegos argues security officer an invalid social in refusing that the district court erred card and drivers license. This social secu- grant him an one-level reduction additional
rity Only card was entered into evidence. acceptance responsi in level for offense secondary after taken to a area for he was 3El.l(b). § bility under U.S.S.G. “Wheth questioning did admit to adjustment to an er defendant is entitled being a citizen of Mexico who had been acceptance responsibility based on is a evidence, deported. of this factual determination reviewed for clear reject jury was able to the unsubstantiat- ed, error.” United States v. Villasenor-Ce self-serving, thoroughly unpersua- (9th Cir.1997). sar, sive defense of that his 114 F.3d The district court awarded CONCLUSION in offense level under two-level reduction Blanco-Gallegos’s conviction under 8 3El.l(a) acceptance responsibility. § for 1326(a) is affirmed. The case is appealed. That determination was not remanded for reconsideration of Blanco- Therefore, only issue is whether Blan Gallegos’s conviction under 8 U.S.C. co-Gallegos op one of the two satisfied resentencing for con- 3El.l(b) under for the additional tions formity opinion. with this one-point reduction in offense level. A amendments, Judges With these Kozin- qualifies one-point defendant for the re ski and deny petition Trott vote to for (b)(1) “if timely provides duction under he rehearing. Judge Nelson grant would complete information.” United States petition. Judges Kozinski and Trott would Cir.1994). Stoops, 25 F.3d banc, deny petition rehearing for en 3El.l(b) key inquiry is whether and Judge Nelson so recommends. The complete timely. confession petition rehearing petition and the Eyler, United States v. rehearing en banc are DENIED. arrest, At the of his time PART; AFFIRMED IN REVERSED Blanco-Gallegos gave statement which and REMANDED IN PART. all of charged admitted the elements of the Although crime. not used at this NELSON, part, D.W. Dissenting timely complete.
statement was
Blan
Concurring
part.
co-Gallegos was therefore entitled to the
additional
reduction in offense
I
panel
Because
think that the
has un
3El.l(b).
level under
prejudice
derestimated the risk of
overstated
strength
govern
*6
government argues
that Blan
case, I respectfully
ment’s
dissent from the
co-Gallegos
his
recanted
statement
portion
panel’s opinion holding
of the
that
government
prepare
forced the
for trial.
undisputed
the error was harmless.
It is
Those facts are relevant
the initial
two-
that
the district court’s admission of the
1.1(a),
point reduction under
3E
but that
that
had been
appealed.
was
issue
not
Once the two-
aggravated felony,
convicted
point reduction under
3E1.1 has been
points during
was referenced at several
awarded,
only question
the
is timeliness
the
was error. See United States v.
completeness,
and Blanco-Gallegos’s
(9th
Alviso,
Cir.1998).
complete
statement
timely.
We
compelled
I am
to dissent because the
therefore reverse the district court’s deci
government
carry
has failed to
its burden
denying
sion
the additional
re
proving
prejudice
that
harm
the
3El.l(b).
duction under
less. See id.
First,
majority’s
I
with
as-
disagree
the
Violating
V. Conviction for
8 U.S.C.
prejudice
sertion that
Blanco-
“any
1326(b)(2)
Gallegos was
minor
sanitized.” This
Supreme
was convicted of violat-
conclusion is at odds with the
1326(a)
(b)(2).
§§
ing 8
After
Court’s decision Almendarez-Torres
conviction,
States,
Supreme
the
523 U.S.
118 S.Ct.
United
(1998),
Court held that
is a
.1078 argument, majority’s to the Contrary stipulation were
Even if a defendant’s previ- not too far- Blanco-Gallegos’ details of the defense was keep the name and jurors would jury, from the that accept. ous offense The fact jury for a fetched indictment, learn, the the still from that he initially stated that the defen- prosecutor, the judge, or necessarily not Puerto Rico does was from felo- aggravated committed an dant had intoxication defense. contradict his that question can be ny.... [TJhere that claim- at trial demonstrated evidence prior of- evidence of the nature immigra- to an heritage Puerto Rican ing fense, here, or it was in different His- well-versed inspector tion serious, prejudice of unfair carries risk implausible means panic accents was to the defendant. fact, In obtaining entry to the U.S. (internal and citation marks quotation Id. immediately recog- immigration inspector omitted). Therefore, fact that Blanco- who is Mexi- Blanco-Gallegos, nized prejudiced to an Gallegos could have been can, a Puerto Rican accent. did not have by introducing more greater even extent Blanco-Gallegos’ unequivocal In way in no his conviction details about and never testimony that he was drunk of the risk diminishes the seriousness U.S., intended to enter nature prejudice by admitting created state- reasonably concluded his have prior offense. of his clumsy Puerto Rico was a com- ment about Second, be the error was not harmless that he was consistent with his claim ment the admission of the cause Ultimately, “thinking straight.” Blanco-Gallegos’ credi likely undermined boiled jury’s resolution of this element that Blanco- bility. prove In order to determination, and credibility to a down Gallegos attempted to reenter Blanco-Gallegos’ aggra- admission of every had to unfairly slanted it vated beyond the crime element of favor. government’s in the doubt, including Blanco-Gallegos pos specific intent to enter sessed the in United States v. Garciar- Our decision Had United States v. United States. See Orozco, Cir.1993), F.2d 1302 Cir.1990) (“[A]t- ley, Garcia-Orozco, we re instructive. specific an element of tempt includes a conviction because the defen versed *7 attempted if does tent even the crime had been errone prior dant’s not.”) (internal marks and cita quotation admitted, ously and his “defense rested omitted). Blanco-Gallegos’ tion defense testimony.” Id. at largely on his own that he drank an extreme amount of that the admission of 1305. We concluded alleged in the hours to the alcohol likely “more than af was too intoxi attempt to reenter thus jury’s fected the measure Garcia-Or- specific cated to form intent. Cf. credibility.” Id. In of the cen ozco’s Sneezer, credibility in trality Cir.1990) (defendant pres was entitled to Supreme admoni this case and the Court’s voluntary intoxication to ent defense of agree tion in I cannot element). intent I fail to negate specific the er majority’s with the conclusion that majority see how the can characterize harmless. I therefore dissent ror was it relates to “overwhelming” evidence as as part. Although Blanco-Gallegos this element. may no evidence other than have offered testimony,
his own offered directly contradicting Blanco-
no evidence specific intent defense. The
Gallegos’ intent ele
jury’s specific assessment of Blan- hinged
ment thus on its evaluation credibility.
co-Gallegos’