United States v. Rizo-Rizo

16 F.4th 1292

UNITED STATES of America, Plaintiff-Appellee,

v.Ricardo RIZO-RIZO, Defendant-Appellant.

No. 20-50172

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 3, 2021 Pasadena, California

Filed October 29, 2021

Doug Keller (argued) and Michael Marks, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

David Chu (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Richard A. Paez, Consuelo M. Callahan, and Mark J. Bennett, Circuit Judges.

BENNETT, Circuit Judge

Defendant Ricardo Rizo-Rizo claims knowledge of alienage is an element of the crime of attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1). The magistrate judge rejected Rizo-Rizo's contention that knowledge of alienage was such an element and so did not recite it as an element during Rizo-Rizo's plea colloquy. Rizo-Rizo nonetheless entered a guilty plea and then appealed to the district court, which also rejected his contention. We have jurisdiction pursuant to 28 U.S.C. § 1291 to consider Rizo-Rizo's appeal of those decisions. We hold that 8 U.S.C. § 1325(a) is a regulatory offense, and thus knowledge of alienage is not an element.

I.

A border patrol agent found and stopped Rizo-Rizo near the United States/Mexico border. When questioned, Rizo-Rizo admitted that he was a citizen of Mexico without appropriate immigration documents to be legally present in the United States. As a result, the agent arrested him. Rizo-Rizo was then questioned again, waived his Miranda rights, and confirmed that he was a citizen of Mexico who had just "illegally entered the United States ...."

Rizo-Rizo was charged with the misdemeanor of attempted illegal entry, in violation of 8 U.S.C. § 1325(a)(1), and he chose to plead guilty without a plea agreement. During the plea colloquy, the magistrate judge listed these elements of attempted illegal entry:

First, the Defendant was at the time of Defendant's attempted entry into the United States an alien, that is, a person who is not a natural born or naturalized citizen or a national of the United States.

Second, the Defendant had the specific intent to enter the United States at a time and place other than as designated by immigration officers.

Third, the Defendant also had the specific intent to enter the United States free from official restraint, meaning the Defendant intended to enter without being detected, apprehended, or taken into custody by government authorities so that he or she could roam freely in the United States.

And, fourth, the Defendant did something that was a substantial step toward committing the crime and that strongly corroborated the Defendant's intent to commit the crime.

Defense counsel objected, claiming that "the Defendant ha[d] to know he was an alien" and thus that the magistrate judge had improperly omitted an element of the offense. The magistrate judge overruled the objection, and Rizo-Rizo pled guilty and was sentenced to time served. On appeal, the district court affirmed, holding that knowledge of alienage was not an element of 8 U.S.C. § 1325(a)(1).

II.

We review de novo the adequacy of a plea colloquy. United States v. Minore , 292 F.3d 1109, 1115 (9th Cir. 2002). Whether knowledge of alienage is an element of 8 U.S.C. § 1325(a)(1) is an issue of first impression in the Ninth Circuit.

III.

We begin, of course, with the statutory text. "In determining what mental state is required to prove a violation of the statute, we look to its words and the intent of Congress." United States v. Price , 980 F.3d 1211, 1218 (9th Cir. 2019) (quoting I.R. ex rel. E.N. v. L.A. Unified Sch. Dist. , 805 F.3d 1164, 1167 (9th Cir. 2015) ). Section 1325(a)(1) provides that "[a]ny alien who ... enters or attempts to enter the United States at any time or place other than as designated by immigration officers" will be fined, or imprisoned up to six months, or both, for a first offense. 8 U.S.C. § 1325(a)(1).

While subsection (a)(1) contains no express mens rea requirement, that subsection's attempt offense incorporates the common law requirement of specific intent to commit the offense. Cf. United States v. Gracidas-Ulibarry , 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc) (explaining that attempted illegal reentry is a specific intent crime under common law principles of attempt). But that specific intent element does not require the government to prove knowledge of alienage.

The alienage element precedes the phrase "enters or attempts to enter": "Any alien who ... enters or attempts to enter the United States ...." 8 U.S.C. § 1325(a)(1). So the specific intent goes to the entry, not the status of the person entering. The specific intent of the attempt offense in § 1325 is simply that the person specifically intended to enter the United States at a time or place other than as designated by immigration officers, as correctly recited by the magistrate judge.¹

Rizo-Rizo argues that our decisions in Gracidas-Ulibarry , 231 F.3d 1188, and United States v. Smith-Baltiher , 424 F.3d 913 (9th Cir. 2005), foreclose this interpretation. In Smith-Baltiher , we held that a defendant charged with attempted illegal reentry, 8 U.S.C. § 1326(a), was entitled to present evidence that he thought he was a United States citizen. 424 F.3d at 925. Section 1326(a) penalizes "any alien who [having been deported] enters, attempts to enter, or is at anytime found in, the United States, unless ... the Attorney General has expressly consented ... [or ] he was not required to obtain such advance consent. " 8 U.S.C. § 1326(a) (emphasis added). The attempt offense in § 1326(a) requires that "the defendant had the purpose, i.e.[,] conscious desire, to reenter the United States without the express consent of the Attorney General." Smith-Baltiher , 424 F.3d at 923 (quoting Gracidas-Ulibarry , 231 F.3d at 1196 ). Thus, a defendant's knowledge of his citizenship status can be relevant to whether the defendant believed he needed the Attorney General's permission before attempting reentry. Id. at 925. By contrast, the attempt offense in § 1325(a)(1) contains no similar provision for which the defendant's knowledge of his citizenship status would matter. And, in Smith-Baltiher , we did not hold that knowledge of alienage is an element of § 1326(a)'s attempt offense. Instead, we decided only that knowledge of alienage was a possible defense that negates the required intent (that the defendant intended to enter the United States without consent ). Id. at 925. Smith-Baltiher does not support Rizo-Rizo.

Rizo-Rizo also argues that a knowledge of alienage requirement follows from Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), in which the Supreme Court decided that a defendant must know of his status as an "alien ... illegally or unlawfully in the United States" to be convicted of firearm possession under 18 U.S.C. § 922(g). Id. at 2195. But Rehaif concerned an express mens rea requirement. "A separate provision, § 924(a)(2), adds that anyone who ‘knowingly violates’ [ § 922(g) ] shall be fined or imprisoned for up to 10 years." Id. at 2194. Thus, the question in Rehaif "concern[ed] the scope of the word ‘knowingly,’ " and the Court determined that it "applie[d] both to the defendant's conduct and to the defendant's status." Id. There is no such express mens rea requirement in § 1325(a)(1) that would apply to the defendant's status. Thus, Rehaif does not support Rizo-Rizo's reading of § 1325(a)(1). See United States v. Collazo , 984 F.3d 1308, 1324 (9th Cir. 2021) (en banc) (explaining that "[w]here a statute includes a mens rea requirement," courts are "not faced with the question whether Congress intended to dispense with a mens rea requirement entirely" but must only determine how far a "knowingly" modifier extends into the statute).

Though § 1325(a) is silent on knowledge of alienage, that is not the end of the analysis. Silence itself "does not necessarily suggest that Congress intended to dispense with a conventional mens rea element." Staples v. United States , 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ; see Rehaif , 139 S. Ct. at 2195. Rather, we usually construe statutes "in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded." Staples , 511 U.S. at 605, 114 S.Ct. 1793 (citation omitted).² This "presumption" in favor of scienter, however, does not apply when Congress creates certain regulatory or public welfare offenses, which "impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal." Id. at 606, 114 S.Ct. 1793 ; see also Morissette v. United States , 342 U.S. 246, 256, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In construing such regulatory offenses, "we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense." Staples , 511 U.S. at 606, 114 S.Ct. 1793.

So we must decide whether § 1325(a) is a regulatory offense as to which the presumption in favor of scienter does not apply. We look at "the peculiar nature and quality of the offense," Morissette , 342 U.S. at 259, 72 S.Ct. 240, as well as "the expectations that individuals may legitimately have in dealing with the regulated [activity]," Staples , 511 U.S. at 619, 114 S.Ct. 1793. For example, hand grenades are so dangerous that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act," and so the presumption does not apply. United States v. Freed , 401 U.S. 601, 609, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) ; see also United States v. Balint , 258 U.S. 250, 252–54, 42 S.Ct. 301, 66 L.Ed. 604 (1922) (upholding strict liability for statute prohibiting the sale of...