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United States v. Montes-Guzman

United States District Court, D. New Mexico

May 22, 2019



         This 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 States.

         Having 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.[1] 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.

         I. Background

         Defendant 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.

         Around 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.

         The 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.

         Agent 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 18.

         Upon 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.

         At his 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.

         The 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.

         Defendant 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.

         The 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.

         Defendant 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 not guilty.

         II. Standard of Review

         The 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 ...

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