United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Defendant Melvin
Montes-Guzman's appeal from the judgment and conviction
entered by United States Magistrate Judge Stephan M. Vidmar
on January 28, 2019. (Doc. 25). Defendant was found guilty of
illegal entry without inspection in violation of 8 U.S.C.
§ 1325(a). (Id.) He appeals his conviction on
the basis that the Magistrate Judge incorrectly applied the
law regarding the definition of “entry” and the
doctrine of official restraint, that he never intended to
evade inspection, and that under a correct application of the
law the evidence does not support a finding beyond a
reasonable doubt that he “entered” the United
reviewed the briefing, the record, and the applicable law,
the judgment finding Defendant guilty of entry without
inspection in violation of 8 U.S.C. § 1325(a) is
affirmed. As further explained herein, the Court is
not persuaded that the doctrine of official restraint applies
in this context. Even if official restraint does apply, the
Court concludes that continuous surveillance by law
enforcement during the crossing of an international border
does not constitute constructive official restraint.
Moreover, continuous surveillance is inapplicable to this
case because the Defendant was not observed crossing the
border between Mexico and the United States. Finally, a
conviction under 8 U.S.C. § 1325(a)(1) does not require
evidence of intent to evade inspection.
Melvin Montes-Guzman is a citizen of Nicaragua. (Doc. 28) at
18 (Transcript of Proceedings Bench Trial and Sentencing
Before Honorable Stephan M. Vidmar, United States Magistrate
Judge, held January 28, 2019, in United States v.
Montes-Guzman, No. 18-po-4491). Defendant was arrested
on December 17, 2018, after crossing the international
boundary line between the United States and Mexico near
“Monument 1.” Defendant stipulates that he is an
alien, meaning not a citizen or national of the United
States, and that he crossed at a point other than a place
designated by immigration authorities as an official port of
entry. (Id.) at 9.
11:00 a.m. on that day, Border Patrol Agent Michael Aragon
was engaged in his official duties when he parked his marked
vehicle on a bluff overlooking the international boundary
between Mexico and the United States. (Id.) at 13.
Agent Aragon observed as a white sedan parked in the
northwestern corner of a parking lot on the Mexico side of
the border, very near the border, but he did not see anyone
exit the vehicle. (Id.) He then turned his attention
elsewhere. (Id.) at 13-14. When Agent Aragon turned
his attention back to the parked sedan, he observed an
individual walking on the northside of the border in New
Mexico, near where the white sedan had parked. (Id.)
at 14, 20. Agent Aragon “saw a person approximately 15
to 20 feet to the north” of a marker indicating the
boundary between the United States and Mexico. (Id.)
at 14. However, he did not see anyone cross the boundary.
(Id.) at 24.
location at which Agent Aragon observed the Defendant in the
United States is approximately two to three miles from the
Paseo del Norte port of entry in El Paso, Texas, and
approximately ten miles from the Santa Teresa Port of Entry
in Santa Teresa, New Mexico. (Id.) at 21-22.
Aragon saw the individual walk in an eastern direction along
a levy road, Brickland Road. (Id.) at 14. Agent
Aragon observed the individual look in his direction, appear
to see him, and continue to walk in an easterly direction
rather than toward Agent Aragon's vehicle. (Id.)
at 14-16, 32. Agent Aragon then drove toward where he could
intercept this individual. (Id.) at 17. Agent Aragon
drove two to three minutes to Brickland Road and turned
south, where he observed the same individual walking
northbound. (Id.) at 17-18. He could not maintain
sight of the individual the entire time. (Id.) at
approaching the individual, Agent Aragon greeted the person
in English and then in Spanish, identifying himself as a
Border Patrol Agent. (Id.) at 17-18. The individual,
later identified as the Defendant, told Agent Aragon that he
was from Nicaragua and was going to El Paso. (Id.)
at 18, 20. The Defendant appeared well dressed and well kept,
not disheveled or dirty. (Id.) at 20. The Defendant
did not have any legal immigration documents, so Agent Aragon
arrested him for illegal entry into the United States.
(Id.) Agent Aragon then requested assistance via
radio to transport the Defendant. (Id.) at 21.
trial, Defendant testified that he requested asylum upon
encountering Agent Aragon. (Id.) at 48-49, 52-53.
Furthermore, Defendant testified that he crossed the border
at the location because of fear, that he saw the Border
Patrol Agent immediately and went to meet him, and that his
intent in entering the United States was to request asylum.
(Id.) at 49. Neither Agent Aragon nor Agent Albert
Dominguez, who processed the Defendant at the Santa Teresa
Border Patrol station, remember the Defendant requesting
asylum. (Id.) at 28, 38-39.
United States charged Defendant with improper entry without
inspection, in violation of 8 U.S.C. § 1325(a), for
“enter[ing] and attempt[ing] to enter the United States
at a time and place other than as designated by Immigration
Officers.” (Doc. 1) at 1. At the close of the United
States' case-in-chief, Defendant moved for a directed
verdict, which the Magistrate Judge denied. (Doc. 28) at 40.
agreed that because the agent had kept him under near
constant surveillance while he crossed the border, he was
under constructive official restraint the entire time and
thus had not “entered” the United States. (Doc.
28) at 59-62. Defendant further argued, even if official
restraint did not apply, that he lacked the intent to evade
inspection because he intended to apply for asylum.
(Id.) at 62-63.
United States disputed the application of the official
restraint doctrine and argued that the evidence proved beyond
a reasonable doubt that Defendant met the elements necessary
for a conviction under 8 U.S.C. § 1325(a): (1) he is not
a citizen of the United States; (2) he entered the United
States; and (3) at a location other than a designated port of
entry. (Id.) at 57-58. While the United States
argued that the official restraint doctrine does not apply in
this District to define “entry” in criminal
immigration cases, it argued in the alternative that this
Defendant was not continually surveilled and was not observed
until after he crossed the border and perfected the illegal
entry. (Id.) at 58. The Magistrate Judge found
Defendant guilty of the offence and sentenced to time served.
(Id.) at 75.
timely filed a notice of appeal on February 12, 2019 (Doc.
26), and timely filed his opening brief on March 12, 2019
(Doc. 32). Defendant contends that “entry” within
the meaning of § 1325(a) has three elements: 1) physical
presence in the United States; 2) inspection and admission by
an immigration official or actual and intentional evasion of
inspection; and 3) freedom from official restraint. Defendant
argues that under a correct application of the official
restraint doctrine, he is not guilty of violating 8 U.S.C.
§ 1325(a). Defendant asserts in the alternative that he
intended to declare for asylum immediately and never intended
to evade inspection, and therefore the second element of
“entry, ” is not satisfied. As a result, he is
Standard of Review
Court has jurisdiction in this matter pursuant to 18 U.S.C.
§ 3402: “In all cases of conviction by a United
States magistrate judge an appeal of right shall lie from the
judgment of the magistrate judge to a judge of the district
court of the district in which the offense was
committed.” However, “[t]he defendant is not
entitled to a trial de novo by a district judge. The scope of
the appeal is the same as in an appeal to the court of
appeals from a judgment entered by a district judge.”
Fed. R. Crim. P. 58(g)(2)(D). The Court reviews “the
legal conclusions de novo and factual findings for clear
error.” United States v. Morrison, 415 F.3d
1180, 1184 (10th Cir. 2005). The Court must review the record
for sufficiency of the evidence to determine “whether a
reasonable jury could find the defendant guilty beyond a