F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 15 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-8018
v.
JOSE ALFREDO LANDEROS-
MENDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 98-CR-115-D)
Joseph D. Richter, Casper, Wyoming, for Appellant.
Lisa E. Leschuck, Assistant United States Attorney, Cheyenne, Wyoming, (David
D. Freudenthal, United States Attorney, District of Wyoming, with her on the
brief), for Appellee.
Before KELLY, MURPHY, Circuit Judges, and COOK, * Senior District Judge.
MURPHY, Circuit Judge.
*
Honorable H. Dale Cook, Senior District Judge, United States District
Court for the Northern District of Oklahoma, sitting by designation.
I. INTRODUCTION
Defendant-Appellant Jose Alfredo Landeros-Mendez appeals his
conviction on one count of illegal reentry by an alien previously deported or
removed 1 and one count of unlawful firearm possession. See 8 U.S.C. § 1326(a),
(b)(2); 18 U.S.C. § 922(g)(5). Landeros-Mendez argues that the United States
presented insufficient evidence to support his illegal reentry conviction because it
did not introduce an order of deportation or removal (“order of deportation or
removal” or “order”). The United States is not required to introduce an order of
deportation or removal to satisfy its burden of proof to support a conviction
under 8 U.S.C. § 1326(a). The United States introduced sufficient evidence to
1
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). See Pub. L. No. 104-208, 110 Stat. 3009,
3009-546 (1996). IIRIRA made comprehensive changes to the Immigration and
Nationality Act (INA), including changes in immigration terminology.
Previously, individuals who were ineligible for admission to the United States
were referred to as “excludable,” while those who had gained admission were
referred to as “deportable.” See 8 U.S.C. §§ 1182, 1251 (1994). Excludable
aliens are now referred to as “inadmissible” aliens. See 8 U.S.C. § 1182.
Additionally, the amended INA now uses the term “removal proceedings” to refer
to the proceedings applicable to both inadmissable and deportable aliens. See 8
U.S.C. § 1229a. Because it is not clear from the record which version of the INA
applied to Landeros-Mendez when he was in Immigration and Naturalization
Service (INS) custody, the phrase “deportation or removal” will be used in this
opinion to refer to the INS proceedings and documents applicable at the time.
Additionally, this opinion will refer to an individual’s physical departure from the
United States at the behest of INS agents as “expulsion.”
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sustain Landeros-Mendez’s convictions. This court exercises jurisdiction
pursuant to 28 U.S.C. § 1291 and affirms.
II. FACTS AND PROCEDURAL HISTORY
On May 5, 1998, Landeros-Mendez was arrested in Casper, Wyoming for
carrying a concealed weapon. It was subsequently discovered that Landeros-
Mendez had been previously deported or removed from the United States and that
he had not received permission from the Attorney General to reenter the country.
He was therefore indicted on two counts. Count one charged Landeros-Mendez
with being an alien who had been deported or removed and had reentered the
United States without the permission of the Attorney General. See 8 U.S.C. §
1326(a)(1), (b)(2). Count two charged him with being an alien unlawfully
present in the United States in possession of a firearm. See 18 U.S.C. §
922(g)(5).
At the ensuing jury trial, Jeffrey Taylor, a detention enforcement officer
with the Immigration and Naturalization Service (INS), testified about the
procedures followed by INS officers when they physically expel a person from
the United States. He testified that after an order of deportation or removal is
issued and signed by an immigration judge, a warrant of deportation or removal
is prepared. The warrant of deportation or removal includes the name, file
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number, fingerprint, and photograph of the individual who is to be physically
expelled, as well as the statutory authority for the expulsion.
The warrant of deportation or removal issued for Landeros-Mendez in
1997 (“the Warrant”) was admitted into evidence at his trial. Officer Taylor
testified that he had signed the Warrant because he had taken Landeros-Mendez’s
fingerprint for that document. Landeros-Mendez stipulated that the fingerprint
on the Warrant was his. Santiago Valle, another INS detention enforcement
officer, also identified his and another officer’s signature on the Warrant, which
he and the fellow officer had signed to verify that they had witnessed Landeros-
Mendez’s physical expulsion from the United States at the Mexican border in
July 1997. Officer Taylor and Officer Valle testified that an alien cannot be
physically expelled unless an order of deportation or removal has been issued.
Landeros-Mendez’s own attorney read from a section of the Warrant which stated
that Landeros-Mendez was “subject to removal or deportation from the United
States, based upon a final order by,” and a box had been checked next to the
phrase “an immigration judge in exclusion, deportation, or removal proceedings.”
At the close of the evidence, Landeros-Mendez moved for a judgment of
acquittal. See Fed. R. Crim. P. 29(a). Although conceding the evidence showed
he had been physically expelled, Landeros-Mendez argued that because the
government had not introduced an order of deportation or removal, there was
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insufficient evidence from which a reasonable jury could find that he had been
the subject of legal deportation or removal proceedings. The motion was denied,
and the jury returned a verdict of guilty on both counts. Landeros-Mendez then
filed a renewed motion for acquittal on the same basis, and this motion was also
denied. See Fed. R. Crim. P. 29(c). He was sentenced to 115 months
imprisonment and $2,200 in fines and assessments.
III. ANALYSIS
A. Standard of Review
Landeros-Mendez argues that the government presented insufficient
evidence to support his convictions. In reviewing the sufficiency of the evidence
to support a conviction, this court reviews the record de novo. See United States
v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). The evidence must be viewed in
the light most favorable to the government, and this court must determine whether
there was direct and circumstantial evidence from which a reasonable jury could
find the defendant guilty beyond a reasonable doubt. See id.
B. Illegal Reentry after Deportation or Removal
Landeros-Mendez was convicted for violating 8 U.S.C. § 1326(a), (b)(2),
which provide:
(a) . . . Subject to subsection (b) of this section, any
alien who--
(1) has been denied admission, excluded, deported, or
removed . . . and thereafter
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(2) enters, attempts to enter, or is at any time found in,
the United States, unless . . . the Attorney General has
expressly consented to such alien's reapplying for
admission . . .
shall be fined under Title 18, or imprisoned not more
than 2 years, or both.
(b) . . . Notwithstanding subsection (a) of this section,
in the case of any alien described in such subsection . . .
(2) whose removal was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 20
years, or both. . . .
Landeros-Mendez challenges the sufficiency of the evidence only with respect to
the “deported or removed” element in 8 U.S.C. § 1326(a)(1). He concedes that
the government proved he was physically expelled from the United States. 2 He
nevertheless argues that because the government did not introduce an order of
deportation or removal, it failed to prove he had previously been the subject of
legal deportation or removal proceedings. 3
2
The government and Landeros-Mendez both agree that the government
must show that Landeros-Mendez was the subject of deportation or removal
proceedings to satisfy the government’s burden of proof under 8 U.S.C. §
1326(a)(1). This court will therefore assume for purposes of this appeal that the
government must demonstrate that Landeros-Mendez was the subject of such
proceedings. Because the United States does not argue that physical expulsion by
the INS would be sufficient to satisfy the “deported or removed” element, this
court does not address that issue.
3
Landeros-Mendez does not attack the validity of the underlying deportation
or removal proceedings, i.e. that the deportation or removal proceedings
improperly denied him the opportunity for judicial review and the entry of the
deportation or removal order was fundamentally unfair. See 8 U.S.C. § 1326(d).
Rather, he simply argues the government is obligated to prove these proceedings
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Based on the evidence presented at trial, a reasonable jury could have
concluded that Landeros-Mendez had previously been the subject of deportation
or removal proceedings resulting in an order of deportation or removal. The
Warrant, which was admitted into evidence, contained a photograph of Landeros-
Mendez, his fingerprint, and the signatures of the INS agent who fingerprinted
him and the two INS agents who witnessed his physical expulsion from the
United States. Two INS agents testified that a warrant of deportation or removal
is prepared after an order of deportation or removal is issued and signed by an
immigration judge and that they cannot physically expel an alien unless an order
of deportation or removal has been issued. In addition, the Warrant cited the
statutory authority under which Landeros-Mendez was to be physically expelled,
and his own attorney read directly from a section of the Warrant wherein it stated
that Landeros-Mendez’s expulsion was based upon a final order by “an
immigration judge in exclusion, deportation, or removal proceedings.”
Relevant case law also supports the conclusion that the government need
not introduce an order of deportation or removal to establish a violation of 8
U.S.C. § 1326(a). See United States v. Anaya, 117 F.3d 447, 448-49 (10th Cir.
1997). Although not clearly distinguishing between deportation or removal
proceedings and physical expulsion, the court described the warrant of
took place, a burden, he further argues, it has failed to meet.
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deportation or removal, together with testimony from INS officers who had
expelled the defendant, as “overwhelming” evidence of defendant’s guilt under 8
U.S.C. § 1326. See id.; see also United States v. Quezada, 754 F.2d 1190, 1193-
95 (5th Cir. 1985) (warrant of deportation admissible and sufficient to satisfy the
arrest requirement of the then-applicable version of § 1326) 4; cf. United States v.
Agustino-Hernandez, 14 F.3d 42, 43 (11th Cir. 1994) (warrant of deportation
properly admitted under Fed. R. Evid. 803(8)(B) and no mention made of order).
This court therefore concludes there was sufficient evidence from which a
reasonable jury could find that Landeros-Mendez was previously deported or
removed under 8 U.S.C. § 1326(a)(1). 5
IV. CONCLUSION
4
Section 1326(a)(1) was amended by IIRIRA. See Pub. L. No. 104-208,
110 Stat. 3009, 3009-618 (1996). Pursuant to this amendment, the phrase
“arrested and deported or excluded and deported” was replaced with “denied
admission, excluded, deported, or removed.” Id.
5
Landeros-Mendez also appeals his conviction under 18 U.S.C. § 922(g)(5),
which provides that it is unlawful for any alien illegally or unlawfully present in
the United States to possess or receive a firearm which has been transported in
interstate commerce. Landeros-Mendez admits he possessed a firearm when he
was arrested. He simply asserts, without citation to authority, that if there was
insufficient evidence to support his illegal reentry conviction under 8 U.S.C. §
1326(a)(1), then he could not have been an alien illegally or unlawfully present in
the United States when he was arrested for possessing a firearm. Because
Landeros-Mendez’s sole argument for reversal of his § 922(g)(5) conviction relies
on an anticipated reversal of his § 1326(a)(1) conviction, this court’s affirmance
of the § 1326(a)(1) conviction defeats Landeros-Mendez’s § 922(g)(5) argument
and this court does not address the merits of his assertion.
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For the reasons stated above, this court concludes there was sufficient
evidence to support Landeros-Mendez’s convictions, and affirms.
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