United States v. Cabrera

83 F.4th 729

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos CABRERA, Defendant-Appellant.

No. 21-50259

No. 21-50261

United States Court of Appeals, Ninth Circuit

Argued and Submitted June 7, 2023 Pasadena, California

Filed September 29, 2023

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding, D.C. Nos. 3:20-cr-00435-LAB, 3:20-cr-00435-LAB-1, 3:15-cr-00353-LAB-1

Kara Hartzler (argued), Federal Public Defender, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

Zachary J. Howe (argued) and Colin M. McDonald, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, United States Attorney; United States Department of Justice, United States Attorney's Office, San Diego, California; Amanda T. Muskat, Fitzgerald Knaier LLP, San Diego, California; for Plaintiff-Appellee.

Before: MILAN D. SMITH, JR., DAVID F. HAMILTON,^* and DANIEL P. COLLINS, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Hamilton;

Concurrence by Judge Collins

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant Juan Cabrera was found guilty of attempted illegal entry pursuant to 8 U.S.C. § 1325 and attempted illegal reentry pursuant to 8 U.S.C. § 1326. On appeal, he argues that the district court violated his rights to a fair trial and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS AND PRIOR PROCEEDINGS

Juan Cabrera is a native and citizen of El Salvador. In the early 1990s, Cabrera left El Salvador to live in the United States.¹ Cabrera never held legal status in the United States. After committing a string of various offenses, he was deported in 2001.

Over the years, Cabrera tried to return to the United States several times but was unsuccessful. He has previously been convicted of illegally entering the United States in 2015 and 2017. In 2018, Cabrera was caught reentering the country and applied for asylum based on his fear of gang violence in El Salvador. Cabrera's application was denied, and he was again deported to El Salvador.

In 2019, Cabrera went to Tijuana and climbed one of two fences separating Mexico from the United States. Cabrera did not attempt to climb the second fence. Instead, he simply sat down. After about seven minutes, Border Patrol Agent Joseph Cisneros drove up to Cabrera. In Spanish, Agent Cisneros asked Cabrera what he later testified were three "standard" questions typically asked by border patrol, namely: (1) what his citizenship was, (2) if he had any immigration documents authorizing entry into the United States, and (3) how and when he entered the United States. Agent Cisneros then asked Cabrera "what [ ] his purpose [was] for crossing into the United States." According to Agent Cisneros, Cabrera answered that he entered the country "just for work" and said nothing else.

The government charged Cabrera with attempted illegal entry pursuant to 8 U.S.C. § 1325 and attempted illegal reentry pursuant to 8 U.S.C. § 1326. To prove guilt pursuant to these statutes, the government must have shown that Cabrera had the "specific intent to [ ]enter free from official restraint," which means intent to "go at large within the United States" and "mix with the population." United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017); see also United States v. Rizo-Rizo, 16 F.4th 1292, 1295 n.1 (9th Cir. 2021), cert. denied, — U.S. —, 143 S. Ct. 120, 214 L.Ed.2d 32 (2022). In addition, the government must have shown that Cabrera intended to "go at large" at the time he physically crossed the border. See United States v. Argueta-Rosales, 819 F.3d 1149, 1161 (9th Cir. 2016).

Cabrera's intent was the only issue in dispute when the case went to trial. At trial, the government asserted that Cabrera climbed the fence to enter the United States undetected and find work. Claiming that it is "[im]possible to convict a previously deported alien for attempted illegal reentry . . . when he crosses the border with the intent only to be [arrested]," id. at 1151, Cabrera's counsel argued he climbed the fence solely to get arrested so he could reapply for asylum—and only thereafter find work. See 8 C.F.R. § 208.7(a)(1) ("[A]n applicant for asylum who is not an aggravated felon shall be eligible . . . to request employment authorization."). Ultimately, a jury found Cabrera guilty of both counts. The district court sentenced Cabrera to 51 months in custody. It also revoked Cabrera's term of supervised release. Cabrera timely appealed.

ANALYSIS

On appeal, Cabrera challenges the district court's (1) admission of his un-Mirandized statement at the border; (2) exclusion of testimony by Erica Pinheiro pertaining to conditions at the border; (3) "dual-intent" jury instructions; and (4) calculation of his sentence.

I. Motion to Suppress

Prior to trial, the district court denied Cabrera's motion to suppress the statement he made to Agent Cisneros about coming to the United States to find work based on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On appeal, Cabrera argues the statement should have been suppressed because he was "in custody" and was not given a Miranda warning prior to his admission.

We review the district court's admission of an un-Mirandized statement de novo. See United States v. Zapien, 861 F.3d 971, 974 (9th Cir. 2017) (per curiam). Ordinarily, we assess whether someone is "in custody" for Miranda purposes by determining "whether a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave." United States v. Medina-Villa, 567 F.3d 507, 520 (9th Cir. 2009), as amended (June 23, 2009) (quoting United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981)). However, "[t]he case books are full of scenarios in which a person is detained by law enforcement officers, is not free to go, but is not 'in custody' for Miranda purposes." United States v. Butler, 249 F.3d 1094, 1098 (9th Cir. 2001) (citing cases).

For instance, in Berkemer v. McCarty, the Supreme Court held that a person subject to a traffic stop is not "in custody" for purposes of Miranda. 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Analogizing the relatively unintrusive nature of traffic stops to stops made pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),² the Berkemer Court stated that "[t]he similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." Id. at 439-440, 104 S.Ct. 3138; see also United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (citing Terry and noting that Border Patrol may stop vehicles at the border when the facts "reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country"). Indeed, one of our sister circuits has explained that courts' "task post-Berkemer is to determine whether the facts of a specific case indicate a situation more akin to a routine traffic stop, at which Miranda warnings are not required, or indicate that a suspect has been 'subjected to restraints comparable to those associated with a formal arrest, at which point Miranda warnings are required.' " United States v. Campbell, 741 F.3d 251, 266 (1st Cir. 2013) (quoting Berkemer, 468 U.S. at 441, 104 S.Ct. 3138).

We applied Berkemer's reasoning to stops at the border in United States v. Galindo-Gallegos, 244 F.3d 728, 730 (9th Cir.), as amended, 255 F.3d 1154 (9th Cir. 2001). In Galindo-Gallegos, two border patrol officers apprehended a group of fifteen to twenty individuals running from the border in an isolated location, told them to sit on the ground, and asked them questions regarding their citizenship and immigration status. Id. at 729. The panel held that "[w]here officers apprehend a substantial number of suspects and question them in the open prior to arrest, this is ordinarily a Terry stop, not custodial questioning, under Berkemer." Id. at 732.

Since Galindo-Gallegos, our court has consistently addressed Miranda challenges at the border by asking whether the detention constituted a permissible Terry stop, or something more. For example, in Medina-Villa, the panel held that "when border patrol agents stop a car based on reasonable suspicion that individuals are illegally present in the country and question the occupants regarding their citizenship and immigration status, the occupants are not in custody for Miranda purposes." 567 F.3d at 520. Similarly, in United States v. Cervantes-Flores, the court construed the stopping of a car "40 miles north of the United States border" as a Terry stop, and found the stop to be permissible because the border patrol officer had reasonable suspicion to stop the car, and the stop was not overly intrusive. 421 F.3d 825, 829-30 (9th Cir. 2005), overruled on other grounds by Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Cervantes-Flores also explained that certain standard questions, such as a migrant's "place of birth," "his citizenship," and "whether he had permission to be in the United States and how he had crossed into the United States," were permissible aspects of a Terry stop because they were "reasonably limited in scope to determining whether [the migrant] had crossed the border illegally." Id. at 830.

Thus, in considering Cabrera's case, we must determine whether his being questioned in between the border fences was permissible pursuant to Terry, rather than whether he was "in custody" pursuant to Miranda. Galindo-Gallegos, 244 F.3d at 732.

The stop here meets the requirements of Terry. First, Cabrera's location between border fences would give any agent reasonable suspicion to believe he may have been...