United States v. Oscar Garcia-Hernandez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50190

Plaintiff-Appellee,

v.  D.C. No.

3:07-cr-02383-L-1

OSCAR JAVIER GARCIA-HERNANDEZ,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Submitted February 10, 2009*

Pasadena, California

Filed June 25, 2009

Before: Andrew J. Kleinfeld, Carlos T. Bea, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

7995

UNITED STATES v. GARCIA-HERNANDEZ 7999

COUNSEL

Devin J. Burstein, San Diego, California, for the defendant-

appellant.

Aaron B. Clark, San Diego, California, for the plaintiff-

appellee.

OPINION

IKUTA, Circuit Judge:

Oscar Javier Garcia-Hernandez appeals his conviction for

illegal reentry under 18 U.S.C. § 1326, which provides an

enhanced maximum sentence for an alien who was removed

from the United States after being convicted of a felony. Gar-

cia argues that the indictment was legally insufficient to sup-

port his enhanced sentence and that the district court should

have suppressed his post-arrest confession of alienage. We

disagree, and we affirm his conviction.

I

On April 29, 2003, Garcia pleaded guilty to making false

statements to federal officers in violation of 18 U.S.C. § 1001,

a felony. In the course of his plea colloquy, Garcia admitted

that he was a citizen of Mexico and that he had illegally

entered the United States. On June 28, 2007, he was removed

from the United States.

Four days later, at approximately 4 a.m. on July 2, 2007,

Garcia was apprehended by border patrol officers in the

desert, on the United States side of the Calexico port of entry.

He was taken into custody and transported to the El Centro

border patrol station. It was an unusually busy day for the El

Centro station; agents apprehended nearly five times as many

8000 UNITED STATES v. GARCIA-HERNANDEZ

people as they would have on an average day. At approxi-

mately 9 a.m., a border patrol officer ran a records check, and

determined that Garcia had previously been deported. Due to

the number of apprehensions by border patrol officers that

day, Garcia was not administratively processed until around

5 p.m., a process that generally takes several hours. At 6 p.m.,

an officer advised Garcia of his procedural rights under the

immigration regulations. At 11:43 p.m., after reviewing Gar-

cia’s file, a supervisor determined that Garcia was subject to

criminal prosecution. Officers then told Garcia that his admin-

istrative procedural rights no longer applied and informed him

of his Miranda rights. Garcia then admitted to being a citizen

of Mexico. He was arraigned before a magistrate judge the

next day.

On August 29, 2007, a grand jury indicted Garcia for illegal

reentry under 8 U.S.C. § 1326(a) and (b).1 The indictment

alleged:

1

These subsections provide, in relevant part:

(a) In general

Subject to subsection (b) of this section, any alien who—

(1) has been denied admission, excluded, deported, or

removed or has departed the United States while an order of

exclusion, deportation, or removal is outstanding, and there-

after

(2) enters, attempts to enter, or is at any time found in, the

United States, unless (A) prior to his reembarkation at a

place outside the United States or his application for admis-

sion from foreign contiguous territory, the Attorney General

has expressly consented to such alien’s reapplying for admis-

sion; or (B) with respect to an alien previously denied admis-

sion and removed, unless such alien shall establish that he

was not required to obtain such advance consent under this

chapter or any prior Act,

shall be fined under title 18, United States Code, or imprisoned

not more than 2 years, or both.

(b) Criminal penalties for reentry of certain removed aliens

UNITED STATES v. GARCIA-HERNANDEZ 8001

On or about July 2, 2007, within the Southern Dis-

trict of California, defendant OSCAR JAVIER

GARCIA-HERNANDEZ, an alien, knowingly and

intentionally attempted to enter the United States of

America with the purpose, i.e., conscious desire, to

enter the United States without the express consent

of the Attorney General of the United States or his

designated successor, the Secretary of the Depart-

ment of Homeland Security, after having been previ-

ously excluded, deported and removed from the

United States to Mexico, and not having obtained

said express consent to reapply for admission

thereto; and committed an overt act to wit, crossing

the border from Mexico into the United States, that

was a substantial step toward committing the

offense; all in violation of Title 8, United States

Code, Sections 1326(a) and (b).

It is further alleged that defendant OSCAR

JAVIER GARCIA-HERNANDEZ was removed

from the United States subsequent to April 29, 2003.

Garcia timely moved to dismiss the indictment on the ground

that it failed to allege all the elements of the charged offense.

The district court denied the motion in an oral decision.

Garcia was convicted of violating § 1326 following a bench

trial. In its decision, the district court denied Garcia’s motion

Notwithstanding subsection (a) of this section, in the case of any

alien described in such subsection—

(1) whose removal was subsequent to a conviction for com-

mission of three or more misdemeanors involving drugs,

crimes against the person, or both, or a felony (other than an

aggravated felony), such alien shall be fined under title 18,

United States Code, imprisoned not more than 10 years, or

both.

8002 UNITED STATES v. GARCIA-HERNANDEZ

to suppress the statements he made to the border patrol offi-

cers, holding that they were voluntary and the delay between

Garcia’s arrest and arraignment was reasonable. The district

court also held that the government proved all the elements

required for a violation of § 1326(a) and (b) beyond a reason-

able doubt, including that Garcia had been removed from the

United States after being convicted of a felony and that he had

knowingly reentered after his removal. The district court sen-

tenced Garcia to 12 months in prison and 36 months of super-

vised release. Garcia timely appeals.

II

Garcia makes two arguments on appeal. First, he argues

that the indictment was legally insufficient to support his con-

viction under 8 U.S.C. § 1326(b). Second, Garcia argues that

his statement to border patrol officers, in which he admitted

his alienage, should be suppressed because he was detained

for an unnecessarily long time before being arraigned.

A

[1] We review the sufficiency of an indictment de novo.

See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032

(9th Cir. 2001). “An indictment must set forth each element

of the crime that it charges.” Almendarez-Torres v. United

States, 523 U.S. 224, 228 (1998). Section 1326(a) provides

for up to two years’ imprisonment for an alien who “(1) has

been denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion, depor-

tation, or removal is outstanding, and thereafter (2) enters,

attempts to enter, or is at any time found in, the United

States,” with exceptions for aliens who reenter with the

express permission of the Attorney General. 8 U.S.C.

§ 1326(a). Section 1326(b) provides for an increased penalty

of up to ten years’ imprisonment for an alien “whose removal

was subsequent to a conviction for . . . a felony.” 8 U.S.C.

§ 1326(b).

UNITED STATES v. GARCIA-HERNANDEZ 8003

[2] Garcia argues that his indictment did not set forth every

element of a violation of § 1326(b) because it did not allege

that his “removal was subsequent to a conviction for . . . a fel-

ony.” Specifically, he argues that “the indictment wholly fails

to allege that the April 29, 2003 date corresponds to a qualify-

ing conviction.” This argument fails. In Almendarez-Torres,

the Supreme Court held that § 1326(b) is a penalty provision

“which simply authorizes a court to increase the sentence for

a recidivist” and does not define a separate crime. 523 U.S.

at 226. For this reason, “neither the statute nor the Constitu-

tion” requires the government to charge the fact of a prior

conviction in the indictment. Id. at 226-27. Instead, the dis-

trict court can find the fact and date of a prior conviction at

sentencing. Id. at 235; United States v. Grisel, 488 F.3d 844,

847 (9th Cir. 2007) (en banc). Accordingly, an indictment is

sufficient to support an enhanced sentence under § 1326(b) if

it contains enough information to allow the district court to

establish at sentencing that the alien’s removal occurred after

the qualifying conviction. See Mendoza-Zaragoza v. Holder,

No. 08-30130, ___ F.3d ___, 2009 WL 1459242, *5 (9th Cir.

May 27, 2009).

[3] This requirement is satisfied here. The indictment stated

that “defendant OSCAR JAVIER GARCIA-HERNANDEZ

was removed from the United States subsequent to April 29,

2003.” The district court determined at sentencing that Garcia

was convicted on April 29, 2003. Because the indictment pro-

vided the information necessary for the district court to con-

clude that Garcia was removed after the date of his

conviction, it is sufficient to support Garcia’s conviction

under § 1326(a) and enhanced sentence under § 1326(b).

B

Garcia also argues that his July 2, 2007 post-arrest state-

ments to the border patrol officers regarding his alienage must

be suppressed because they were obtained in violation of his

right to prompt presentment before a magistrate judge.

8004 UNITED STATES v. GARCIA-HERNANDEZ

[4] Our consideration of Garcia’s claim requires us to

review the history of the prompt-presentment requirement,

which the Supreme Court recently addressed in Corley v.

United States, 129 S. Ct. 1558 (2009). As explained in Cor-

ley, the obligation of an officer to present an arrestee before

a magistrate judge without unreasonable delay was a common

law right that was subsequently codified in a number of fed-

eral statutes. See 129 S. Ct. at 1562. In the exercise of its

“[j]udicial supervision of the administration of criminal jus-

tice in the federal courts,” the Supreme Court held in McNabb

v. United States, 318 U.S. 332, 340 (1943), that federal courts

should enforce this prompt-presentment requirement by sup-

pressing a defendant’s confession if it was made “after an

unreasonable delay in bringing him before a judge.” Corley,

129 S. Ct. at 1562. The McNabb Court explained that such a

“procedural requirement checks resort to those reprehensible

practices known as the ‘third degree,’ which, though univer-

sally rejected as indefensible, still find their way into use.”

McNabb, 318 U.S. at 344.2

[5] Three years after McNabb, Rule 5(a) of the Federal

Rules of Criminal Procedure was promulgated to pull “the

several statutory presentment provisions together in one

place.” Corley, 129 S. Ct. at 1562-3. At that time, Rule 5(a)

required:

An officer making an arrest under a warrant issued

upon a complaint or any person making an arrest

without a warrant shall take the arrested person with-

out unnecessary delay before the nearest available

commissioner or before any other nearby officer

empowered to commit persons charged with offenses

against the laws of the United States.

2

The “third degree” refers to the “process of extracting a confession or

information from a suspect or prisoner by prolonged questioning, the use

of threats, or physical torture.” Black’s Law Dictionary 1518 (8th ed.

2004).

UNITED STATES v. GARCIA-HERNANDEZ 8005

Mallory v. United States, 354 U.S. 449, 451-52 (1957) (quot-

ing Fed. R. Crim. Proc. 5(a) (1946)). Applying Rule 5(a), the

Supreme Court held that a confession which had been made

seven hours after arrest was inadmissible due to unnecessary

delay. Mallory, 354 U.S. at 453. “Thus the rule known simply

as McNabb-Mallory ‘generally render[s] inadmissible confes-

sions made during periods of detention that violat[e] the

prompt presentment requirement of Rule 5(a).’ ” Corley, 129

S. Ct. at 1563 (quoting United States v. Alvarez-Sanchez, 511

U.S. 350, 354 (1994)).3

[6] In 1968, Congress modified the McNabb-Mallory rule

by enacting 18 U.S.C. § 3501(c). See Corley, 129 S. Ct. at

1563—64. Section 3501(c) provides that a court may not sup-

press a confession made during a six-hour safe-harbor period

solely due to delay in presentment if the confession was made

voluntarily and if the weight to be given the confession is left

to the jury. 18 U.S.C. § 3501(c).4 The statute also provides for

an extension of the six-hour time limit “in any case in which

3

Although Rule 5(a) has been amended since Mallory was decided, the

relevant language for purposes of the prompt-presentment requirement is

the same: Rule 5 still requires federal officers to present or arraign defen-

dants before a judge “without unnecessary delay.” Fed. R. Crim. Proc.

5(a)(1)(A).

4

Section 3501(c) states, in pertinent part:

In any criminal prosecution by the United States or by the Dis-

trict of Columbia, a confession made or given by a person who

is a defendant therein, while such person was under arrest or

other detention in the custody of any law-enforcement officer or

law-enforcement agency, shall not be inadmissible solely because

of delay in bringing such person before a magistrate judge or

other officer empowered to commit persons charged with

offenses against the laws of the United States or of the District

of Columbia if such confession is found by the trial judge to have

been made voluntarily and if the weight to be given the confes-

sion is left to the jury and if such confession was made or given

by such person within six hours immediately following his arrest

or other detention . . . .

18 U.S.C. § 3501(c).

8006 UNITED STATES v. GARCIA-HERNANDEZ

the delay in bringing such person before such magistrate

judge or other officer beyond such six-hour period is found by

the trial judge to be reasonable considering the means of

transportation and the distance to be traveled to the nearest

available such magistrate judge or other officer.” Id.

In Corley, the Supreme Court held that § 3501(c) did not

supplant the McNabb-Mallory rule, but rather modified the

rule to “provide immunization to voluntary confessions given

within six hours of a suspect’s arrest.” 129 S. Ct. at 1564. As

we have explained, the “clear effect of [§ 3501(c)] is to create

a six-hour ‘safe harbor’ during which a confession will not be

excludable solely because of delay.” United States v. Van

Poyck, 77 F.3d 285, 288 (9th Cir. 1996) (internal alterations

omitted); accord United States v. Mitchell, 502 F.3d 931, 961

n.4 (9th Cir. 2007).

[7] In light of its interpretation of § 3501(c), the Supreme

Court set forth a two-part test for assessing potential viola-

tions of the prompt-presentment requirement:

[A] district court with a suppression claim must find

whether the defendant confessed within six hours of

arrest (unless a longer delay was “reasonable consid-

ering the means of transportation and the distance to

be traveled to the nearest available magistrate”). [1]

If the confession came within that period, it is admis-

sible, subject to the other Rules of Evidence, so long

as it was “made voluntarily and the weight to be

given it is left to the jury.” [2] If the confession

occurred before presentment and beyond six hours,

however, the court must decide whether delaying

that long was unreasonable or unnecessary under the

McNabb-Mallory cases, and if it was, the confession

is to be suppressed.

Corley, 129 S. Ct. at 1571 (alterations and citations omitted).

UNITED STATES v. GARCIA-HERNANDEZ 8007

Applying this two-part test to the facts of this case, we first

conclude that Garcia’s confession of alienage falls outside the

§ 3501(c) safe harbor. There is no dispute that Garcia made

his confession more than six hours after he was arrested. Nor

is the extension of the six-hour time limit under § 3501(c)

applicable here, because the district court did not find the

delay “to be reasonable considering the means of transporta-

tion and the distance to be traveled to the nearest available

such magistrate judge or other officer.” 18 U.S.C. § 3501(c).

Because the § 3501(c) safe harbor is inapplicable, we next

consider whether the delay “was unreasonable or unnecessary

under the McNabb-Mallory cases.”5 Corley, 129 S. Ct. 1571.

Garcia urges us to define “unnecessary delay” as delay caused

by “factors beyond the government’s control that necessarily

prevent prompt presentation to a magistrate.” According to

Garcia, a “busy day at the border patrol station,” the cause of

the delay in his case, is “the epitome of unnecessary delay.”

Thus, Garcia argues, his confession must be suppressed.

[8] We disagree. The Supreme Court has held “that delay

for the purpose of interrogation is the epitome of ‘unnecessary

delay.’ ” Corley, 129 S. Ct. at 1563 (citing Mallory, 354 U.S.

at 455-56) (emphasis added). The McNabb-Mallory rule was

designed to deter police from engaging in lengthy pre-

arraignment detentions for the purpose of further interrogating

a defendant. Accordingly, a delay is unreasonable and unnec-

essary when it is “of a nature to give opportunity for the

extraction of a confession.” Mallory, 354 U.S. at 455. We

have been careful not to overextend McNabb-Mallory’s pro-

phylactic rule in cases where there was a reasonable delay

5

Before Corley was decided, Garcia argued that § 3501(c) required the

suppression of any confession that was made more than six hours after

arraignment and does not otherwise meet the safe-harbor requirements of

§ 3501(c). In supplemental briefing after Corley was issued, Garcia aban-

doned this argument, which is clearly inconsistent with Corley’s two-

prong test for assessing violations of the prompt-presentment requirement.

8008 UNITED STATES v. GARCIA-HERNANDEZ

unrelated to any prolonged interrogation of the arrestee. In

particular, we have held that administrative delays due to the

unavailability of government personnel and judges necessary

to completing the arraignment process are reasonable and nec-

essary and therefore do not violate the prompt-presentment

requirement of Rule 5(a). See, e.g., United States v. Gamez,

301 F.3d 1138, 1143 (9th Cir. 2002) (holding that a day-and-

a-half delay was reasonable due to the unavailability of

Spanish-speaking federal agents); Van Poyck, 77 F.3d at 289

(holding that a defendant’s statements “fall[ing] outside

§ 3501(c)’s ‘safe harbor’ ” were nonetheless admissible

because the weekend delay due to the lack of an available

magistrate was “reasonable” under the circumstances).

[9] Here, the district court found the delay in Garcia’s pre-

sentment was caused not by a desire to interrogate Garcia fur-

ther but by a shortage of personnel necessary to process

Garcia and determine whether he should be criminally

charged. See United States v. Garcia-Hernandez, 550 F.

Supp. 2d 1228, 1235 (S.D. Cal. 2008). The district court’s

findings are not clearly erroneous. See United States v.

Padilla-Mendoza, 157 F.3d 730, 732 (9th Cir. 1998) (“We

review a district court’s finding that a pre-arraignment delay

was reasonable for clear error.”). Because we agree with the

district court that the delay in presentment occasioned by the

officers’ heavy caseload was reasonable and necessary under

the circumstances, we conclude that the district court did not

err in denying Garcia’s motion to suppress his confession.6

III

The indictment sufficiently alleged a violation of 8 U.S.C.

6

Because we conclude that Garcia was arraigned “without unnecessary

delay,” Fed. R. Crim. P. 5(a), we need not address Garcia’s argument that

Corley supersedes our cases indicating that a defendant’s statement may

be admitted if admission is supported by “public policy.” See Van Poyck,

77 F.3d at 289.

UNITED STATES v. GARCIA-HERNANDEZ 8009

§ 1326, and Garcia’s confession of alienage was properly

admitted. The judgment of the district court is therefore

AFFIRMED.