FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-30002
v. D.C. No.
4:09-cr-00092-
JAVIER DOLORES GONZALEZ-DIAZ, SEH-1
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-30030
Plaintiff-Appellee, D.C. No.
v. 4:09-cr-00077-
JAVIER DOLORES GONZALEZ-DIAZ, SEH-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 5, 2010—Portland, Oregon
Filed January 24, 2011
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and James P. Jones, District Judge.*
Opinion by Judge Fisher
*The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
1359
UNITED STATES v. GONZALEZ-DIAZ 1361
COUNSEL
Anthony R. Gallagher, Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the defendant-
appellant.
Michael W. Cotter, United States Attorney, Bryan R. Whitta-
ker (argued), Assistant United States Attorney, Helena, Mon-
tana, for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
Javier Dolores Gonzalez-Diaz appeals his conviction for
being “found in” the United States following deportation, in
violation of 8 U.S.C. § 1326. Gonzalez-Diaz was living in the
1362 UNITED STATES v. GONZALEZ-DIAZ
United States unlawfully from April 2009 through June 19,
2009. On June 19, he drove into Canada. On the Canadian
side of the border, Canadian immigration officers issued him
a form permitting his entry for further examination, trans-
ported him 55 miles from one port of entry to another, held
him overnight in a Canadian jail, questioned him regarding
his immigration status the following morning, determined he
was excludable, drove him back to the initial port of entry and
handed him over to United States immigration authorities,
who arrested him for violating § 1326. Gonzalez-Diaz con-
tends that he was not “found in” the United States because his
unlawful presence in the United States since April 2009 ended
when he entered Canada on June 19, and because he was
under official restraint when he reentered the United States on
June 20. We have jurisdiction under 28 U.S.C. § 1291 and we
affirm.
In accordance with United States v. Ambriz-Ambriz, 586
F.3d 719 (9th Cir. 2009), we hold that Gonzalez-Diaz’s
unlawful presence in the United States was not affected by his
relatively brief physical presence in Canada because he was
never “legally in” Canada. We also hold that Gonzalez-Diaz
was not under official restraint when he was arrested by U.S.
immigration agents because, having been denied legal entry
into Canada, he was not entering the United States from a for-
eign country.1
BACKGROUND
In April 2009, Gonzalez-Diaz illegally entered the United
States from Mexico near Douglas, Arizona. He traveled to
Utah, where he met Phillip Baca, who assisted him in obtain-
ing fraudulent identification documents. Gonzalez-Diaz then
moved to Ronan, Montana, where he sought and obtained
employment using the name, social security number and
1
We address other issues Gonzalez-Diaz raises on appeal in a concur-
rently filed memorandum disposition.
UNITED STATES v. GONZALEZ-DIAZ 1363
social security card of Baca and the fraudulent Utah identifi-
cation card Baca had helped him obtain. On June 2, 2009,
Gonzalez-Diaz applied for a United States passport, using
Baca’s name, social security number and birth certificate and
representing himself to be a United States citizen.
On June 19, 2009, Gonzalez-Diaz drove his car from Mon-
tana, crossed the international boundary and presented himself
to Canadian immigration officers for entry to Canada at the
Chief Mountain, Alberta port of entry. At the border,
Gonzalez-Diaz produced a Utah identification card to a Cana-
dian Border Services Agency officer. Because Gonzalez-Diaz
claimed to be a U.S. citizen but did not provide proof of citi-
zenship, border services officers conducted a secondary immi-
gration exam. They searched the car and found numerous
identification documents, some in Baca’s name and some in
Gonzalez-Diaz’s name. Based on the conflicting documents
and the absence of proof of citizenship, the officers deter-
mined that Gonzalez-Diaz could not be admitted to Canada.
They planned to prepare an “Allowed to Leave” form, denot-
ing that Gonzalez-Diaz did not have proper forms of identifi-
cation to enter Canada, so he could return to the United
States.
Gonzalez-Diaz, however, refused to return to the United
States. He told the Canadian officers that he would die in
prison if he went back to the United States and that a drug
cartel would kill him if he went back to Mexico. One of the
inspecting officers interpreted Gonzalez-Diaz’s statements as
a potential refugee claim. Because the Chief Mountain port of
entry was not equipped with personnel or equipment to handle
Gonzalez-Diaz’s case, the officers completed an “Entry for
Further Examination” form and transported him to the Car-
way port of entry, about 55 miles away, under a Royal Cana-
dian Mounted Police escort.
When Gonzalez-Diaz and the officers arrived in Carway, it
was too late in the day to process his case, so the officers took
1364 UNITED STATES v. GONZALEZ-DIAZ
him to the Royal Canadian Mounted Police lockup in Cards-
ton for the night, approximately 15 miles away.
The next morning, June 20, Canadian officers transported
Gonzalez-Diaz from the jail back to the Carway point of
entry, where he was interviewed and found to be inadmissible
because he lacked a passport. The officers issued an exclusion
order. They then drove Gonzalez-Diaz to the United States
border and released him into U.S. custody at the Chief Moun-
tain port of entry, known as the Piegan, Montana port of entry
on the United States side of the border. Gonzalez-Diaz was in
some form of custody the entire time he was in Canada.
At the Piegan port of entry, United States Customs and
Border Protection agents ran Gonzalez-Diaz’s information
through several records checks, which showed he was a native
and citizen of Mexico and had been previously deported from
the United States on four occasions. Agents also interviewed
Gonzalez-Diaz, who admitted that he was a citizen of Mexico
and was in the United States illegally.
Gonzalez-Diaz was indicted on eight counts, including, as
relevant here, one count of being found in the United States
following deportation, in violation of 8 U.S.C. § 1326. The
case was tried to a jury over two days. At the close of the gov-
ernment’s case, Gonzalez-Diaz moved for judgment of acquit-
tal under Rule 29 of the Federal Rules of Criminal Procedure,
arguing that he was not “found in” the United States when he
was apprehended at the border by U.S. immigration agents
because he was entering the United States from Canada. The
district court denied the motion, concluding that Gonzalez-
Diaz was “found in” the United States because he had never
been admitted into Canada. Gonzalez-Diaz was convicted on
all counts, and now appeals.
STANDARD OF REVIEW
We review de novo the denial of a Rule 29 motion for
acquittal. See United States v. Rocha, 598 F.3d 1144, 1153
UNITED STATES v. GONZALEZ-DIAZ 1365
(9th Cir. 2010). The test to be applied is the same as for a
challenge to the sufficiency of the evidence. See id. “First, a
reviewing court must consider the evidence presented at trial
in the light most favorable to the prosecution.” United States
v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). Sec-
ond, “the reviewing court must determine whether this evi-
dence, so viewed, is adequate to allow ‘any rational trier of
fact [to find] the essential elements of the crime beyond a rea-
sonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
DISCUSSION
“Section 1326 criminalizes three acts by aliens who have
been deported: (1) entering the United States; (2) attempting
to enter; or (3) being ‘found in’ the United States, all without
permission of the Attorney General.” United States v. Her-
nandez, 189 F.3d 785, 789 (9th Cir. 1999).2 Here, the indict-
ment charged Gonzalez-Diaz only under the third theory —
with being found in the United States, following deportations
in 1999, 2003 and 2008.
2
Section 1326(a) provides:
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 thereafter
(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 admission from
foreign contiguous territory, the Attorney General has expressly
consented to such alien’s reapplying for admission; or (B) with
respect to an alien previously denied admission 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, or imprisoned not more than 2
years, or both.
8 U.S.C. § 1326(a).
1366 UNITED STATES v. GONZALEZ-DIAZ
Gonzalez-Diaz concedes he was found by U.S. immigration
authorities when they identified him and determined his
unlawful status at the Piegan port of entry on June 20. See id.
at 791 (“The offense of being found in the United States ends
when an alien is discovered and identified by the immigration
authorities.”). But he denies he was found in the United
States, arguing that he was not present in the United States
when he was found. He contends his presence in the United
States since April 2009 ended when he departed the United
States and entered Canada on June 19 and 20. He further con-
tends that even though he was physically present within the
United States on June 20, when he was apprehended by U.S.
immigration authorities at the Piegan port of entry, he was not
in the United States at that time for purposes of § 1326
because he was not free from official restraint.
[1] Gonzalez-Diaz’s argument rests on two sound general
propositions. First, an alien cannot be found in the United
States if he has departed the United States before he is found.
This is so because the offense of being found in the United
States requires both the alien’s unlawful presence and his dis-
covery by immigration authorities: if an alien departs the
United States before his unlawful presence is discovered, the
offense has not been committed. See United States v. Ayala,
35 F.3d 423, 425 (9th Cir. 1994) (“To avoid being ‘found in’
the United States, a deported alien can either not re-enter the
United States or, if he has already re-entered the United
States, he can leave.”); see also Hernandez, 189 F.3d at 790
(explaining that § 1326 makes it a crime “for a deported alien
to remain in the United States until he is ‘found’ by the
authorities”). Second, when an alien is entering the United
States from a foreign country and is discovered at the border,
he cannot be found in the United States until he is free from
official restraint. See United States v. Ruiz-Lopez, 234 F.3d
445, 448 (9th Cir. 2000) (“An alien’s mere physical presence
on United States soil . . . is insufficient to convict him of
being found in the United States . . . . Rather, the government
must also establish that the alien entered the United States
UNITED STATES v. GONZALEZ-DIAZ 1367
free from official restraint at the time officials discovered or
apprehended him.”).
[2] As applied here, however, Gonzalez-Diaz’s argument
is without merit because he neither departed the United States
nor entered Canada in the sense contemplated by the afore-
mentioned authorities. Our conclusion is dictated by United
States v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. 2009), which
we decided shortly after Gonzalez-Diaz’s trial. Ambriz was a
citizen of Mexico who, like Gonzalez-Diaz, had been in the
United States illegally for some time before attempting to
leave the United States by driving to Canada. See id. at 721,
723. The vehicle in which he was traveling with two other
individuals crossed onto Canadian soil but was denied entry
into Canada and forced to proceed back to the United States
port of entry, where U.S. immigration agents stopped the
vehicle, discovered that Ambriz was in the United States
unlawfully and arrested him. See id. at 721. Like Gonzalez-
Diaz, Ambriz was convicted of being found in the United
States following deportation in violation of § 1326. On
appeal, he argued that he was not found in the United States
because he was under official restraint when he was appre-
hended at the U.S. border. See id. at 722.
[3] We rejected Ambriz’s argument, explaining that the
official restraint doctrine “pertains to an individual entering
the United States from a foreign country, and thus is inappli-
cable to Mr. Ambriz’s situation.” Id. at 723. “Although
Ambriz may have technically traveled onto Canadian land
from the United States, he was never legally in Canada, and
thus, when he appeared at the port of entry, he was not enter-
ing the United States from a foreign country.” Id. We held
that “there was more than enough evidence from which a
juror could reasonably conclude that Ambriz was not entering
the United States from Canada and thus was ‘found in’ the
United States for purposes of § 1326,” based on Ambriz’s
unlawful presence in the United States before his attempted
entry into Canada Id. at 724. The official restraint doctrine
1368 UNITED STATES v. GONZALEZ-DIAZ
was inapplicable because he did not succeed in his attempt to
enter Canada, and therefore “Ambriz never legally left the
United States.” Id.
Gonzalez-Diaz would distinguish Ambriz-Ambriz by
emphasizing the factual differences between that case and his
own. He points out that Canadian authorities summarily
denied Ambriz entry at the border, whereas he was issued an
Entry for Further Examination form, spent parts of two days
in Canada, traveled beyond the Chief Mountain point of entry
to Carway and Cardston and was questioned extensively by
Canadian immigration authorities before being turned away.
Focusing on the Entry for Further Examination form, he
argues that he gained legal entry into Canada, unlike Ambriz,
and therefore should be deemed to have entered Canada and
departed from the United States. Having thus ended his
unlawful presence in the United States, he argues, he must
necessarily have reentered from a foreign country, such that
the official restraint doctrine is applicable.
These factual distinctions are immaterial. The Canadian
border services officers involved in Gonzalez-Diaz’s deten-
tion uniformly testified that he never gained legal entry into
Canada.3 The Entry for Further Examination form states that
“[t]his authorization to enter Canada does not confer status.”
Canadian immigration officers testified that the sole reason
for issuing this form was to be able to transport Gonzalez-
3
The opinions of Canadian Border Services Agency officers are not
conclusive on questions of Canadian immigration law. We nonetheless
conclude that by presenting the officers’ testimony, which is consistent
with the language of the Entry for Further Examination form itself, the
prosecution here satisfied its burden at trial of establishing that Gonzalez-
Diaz did not gain legal entry into Canada within the meaning of Ambriz-
Ambriz. The parties have not provided any Canadian legal authority to the
contrary and we are not aware of any. Cf. Leng May Ma v. Barber, 357
U.S. 185, 188 (1958) (applying U.S. law) (“[T]he detention of an alien in
custody pending determination of his admissibility does not legally consti-
tute an entry though the alien is physically within the United States.”).
UNITED STATES v. GONZALEZ-DIAZ 1369
Diaz from Chief Mountain to Carway for further questioning.
One officer testified:
Because he was not legally admitted to Canada, we
have a form that furthers the examination. And it’s
essentially the same as walking to another building
within the same port in terms of legal ramifications.
We filled out this form which means that he still had
not been legally admitted to Canada, even though he
was physically in the country. And that form allowed
us to take him to the Port of Carway without legally
admitting him.
[4] Gonzalez-Diaz was never “legally in” Canada and was
in some form of custody throughout his physical presence
there. He therefore remained “in” the United States until June
20, when he was “found” by U.S. immigration authorities.
Because he was not entering the United States from a foreign
country on June 20, the official restraint doctrine does not
apply. See Ambriz-Ambriz, 586 F.3d at 723-24. The district
court therefore properly denied his motion for acquittal.
AFFIRMED.