IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 9, 2009
No. 08-51224
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GABRIEL ARTURO GARCIA
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY, WIENER and BARKSDALE, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Gabriel Arturo Garcia (“Garcia”) was convicted on
his plea of guilty without a plea agreement to one count of making a false
statement in violation of 18 U.S.C. § 1001(a)(2). Garcia now appeals his
sentence, contending that the district court erred by sentencing him pursuant
to a base offense level for alien smuggling. Finding no reversible error in the
district court’s application and interpretation of the United States Sentencing
Guidelines (“the Guidelines”), we affirm.
I. FACTS AND PROCEEDINGS
A. Facts
Accompanied by two female adult passengers and two children, Garcia
drove his pickup truck from Mexico to the Ysleta Port of Entry near El Paso,
No. 08-51224
Texas. At the border station, an officer asked Garcia about his citizenship and
the citizenship of his passengers. Garcia, a U.S. citizen, responded that he and
his passengers were all U.S. citizens. After Garcia presented the officer with a
valid Colorado birth certificate, the officer asked for the names and birth
certificates of Garcia’s passengers. Garcia responded that his passengers were
(1) his sister, Ysenia Zamora, (2) his friend, Annette Eustolia Moctezuma,(3) his
niece, a minor, and (4) his son, also a minor. Garcia’s passengers all presented
the officer with Colorado birth certificates.
Suspicious that Moctezuma might not be a U.S. citizen, the officer asked
her specifically how she knew the other passengers, to which she replied that
they were all friends from Colorado. According to the border patrol officer,
Garcia then began to attempt to distract the officer, joking that Moctezuma’s
middle name — “Eustolia” — was “ugly.” The officer, however, continued to
question Moctezuma, asking her whether she was a U.S. citizen. Moctezuma
answered that she was a U.S. citizen and that she had been born in Colorado.
The officer then asked her why she had been in Ciudad Juarez and, again, how
she knew the other passengers. This time, Moctezuma paused before
responding, in Spanish, that she had just moved to Colorado a year ago from
Mexico. Believing that Moctezuma was not a U.S. citizen, the officer declined
to admit Garcia or his passengers into the country and instead referred them to
a secondary processing area for further investigation.
When questioned at the secondary area about his passengers, Garcia
stated that he had first met Moctezuma in Colorado about four months ago.
Under further questioning, however, he soon revised his story, explaining that
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No. 08-51224
in fact he had met her only five days earlier in Ciudad Juarez. Garcia then
added that Moctezuma had asked him for a ride to Colorado.
After speaking with Garcia, the border officer interviewed Moctezuma
separately. It was during this interview that Moctezuma admitted that her true
name was Brenda Valdez-Flores and that she was a Mexican citizen without
proper documentation to enter or remain in the United States. Valdez-Flores
further explained that the minor whom Garcia had identified as his son was in
fact her child, also a citizen of Mexico, who similarly lacked proper
documentation to enter the United States. Valdez-Flores stated that her
estranged husband had taken her other son to Colorado without her consent and
that she had intended to travel to Colorado to retrieve her child. According to
Valdez-Flores, Garcia had known all along that she was not a U.S. citizen and
had even obtained birth certificates from his family members so that she and her
son could present valid documents at the border to gain admission into the
country.
When the border officer later confronted Garcia with this information,
Garcia admitted that he had known all along that Valdez-Flores and her son
were not U.S. citizens and did not have the proper documentation to enter or
remain in the country. Garcia claimed that he had lied to the border patrol
officer to protect Valdez-Flores and her son. At this time, Garcia was placed
under arrest and read his Miranda rights, following which he requested the
assistance of counsel and declined to speak with the officer further.
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No. 08-51224
B. Proceedings
1. Rearraignment
Garcia was charged in a one-count indictment with a violation of 18 U.S.C.
§ 1001(a)(2), which makes it a crime for any person, “in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government of
the United States, [to] knowingly and willfully ... make[] any materially false,
fictitious, or fraudulent statement or representation.” Specifically, the
indictment charged that Garcia
did knowingly and willfully make a materially false, fictitious and
fraudulent statement and representation in that [he] said that the
female passenger in the vehicle he was driving was a United States
citizen when in truth and in fact, [he] knew that the female
passenger was a citizen of Mexico and that [his] false statements
were attempts to aid the female passenger’s entry into the United
States, in violation of Title 18, United States Code, Section
1001(a)(2).
(Emphasis added).
At Garcia’s rearraignment, the district court explained the elements of the
offense to Garcia as follows:
Mr. Garcia, if you were to proceed to trial on the single-count
Indictment, for you to be convicted of having made a false material
statement, the Government would be obligated to prove beyond a
reasonable doubt that you did knowingly and willfully make a
materially false, fictitious, and fraudulent statement and
representation, that you said that the female passenger in the
vehicle which you were driving was a United States citizen, that you
knew that the female passenger was a citizen of Mexico, and that
you falsely made the statement in an attempt to aid the female
passenger’s entry into the United States.
(Emphasis added).
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No. 08-51224
The district court then instructed the government to read the contents of
the factual basis into the record. In pertinent part, the factual basis, as recited
by the government, alleged that
Garcia [had] stated to the United States Customs and Border
Protection officer that [his] female passengers were United States
citizens. Garcia and the passengers of the vehicle were referred to
the secondary inspection area. In the secondary inspection area,
Garcia admitted to the United States Customs and Border
Protection officer that he knew that one of the passengers was not
a citizen of the United States but a citizen of Mexico with no
documents to legally enter or remain in the United States.
When the district court asked Garcia whether he agreed with the government’s
recitation of the factual basis, Garcia answered that everything in the factual
basis was correct. Garcia then pleaded guilty to the one-count indictment
without a plea agreement.
2. Sentencing
The probation officer who compiled Garcia’s presentence report declined
to recommend U.S.S.G. § 2L2.1 (the base offense level for making a false
statement regarding the citizenship of another), and instead recommended that
the district court apply § 2L1.1(a)(3) (the base offense level for alien smuggling).
In Garcia’s case, the base offense level for making a false statement regarding
the citizenship of another would have been 11; the alien-smuggling provision
applied by the probation officer, however, called for a base offense level of 12.
Because the probation officer found that Garcia had committed the offense
“for other than profit,” the officer recommended that the district court apply a
three-level reduction. The officer also recommended a two-level reduction based
on Garcia’s acceptance of responsibility, resulting in a total offense level of
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No. 08-51224
seven. Garcia’s extensive record of arrests and convictions indicated a criminal
history category of VI. Thus, pursuant to the probation officer’s calculations, the
guidelines sentencing range called for a term of 15 to 21 months’ imprisonment.
If, on the other hand, the officer had applied the provision for making a false
statement regarding the citizenship of another, Garcia’s initial offense level
would have been 11, and his sentencing range, after reductions, would have been
12 to 18 months.
Garcia timely objected to the presentence report, contending that the
probation officer had applied the incorrect provision for calculating Garcia’s base
offense level. According to Garcia, the probation officer should have calculated
the base offense level by applying § 2L2.1, the provision applicable to “false
statement[s] in respect to the citizenship or immigration status of another.”
Garcia contended that § 2L1.1 — having to do with alien smuggling — was
inapplicable because he had neither been charged with nor convicted of
smuggling or attempting to smuggle an alien into the country.
In response to Garcia’s objection, the probation officer filed an addendum
to the PSR, declining to credit the objection or amend the report. In the
addendum, the probation officer defended the application of the alien-smuggling
provision by explaining that Garcia had not only “provided a false statement to
[border] officers [in] reference [to] the citizenship or immigration status of the
female passenger (Brenda Valdez-Flores) in the vehicle he was operating, but did
so in a manner to facilitate the illegal entry of the female passenger into the
United States.” The probation officer also noted as persuasive Valdez-Flores’s
conviction for illegal re-entry resulting from the same events that gave rise to
the charge against Garcia.
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No. 08-51224
At sentencing, the district court adopted the findings and
recommendations of the presentence report, overruling Garcia’s objection that
the application of the alien-smuggling provision was inappropriate. Noting as
persuasive Garcia’s extensive criminal history, the court sentenced Garcia to 20
months’ imprisonment, followed by three years’ supervised release. Garcia now
appeals his sentence, contending that the district court erred in applying the
provision for alien-smuggling to calculate his advisory guidelines sentencing
range.
II. LAW AND ANALYSIS
A. Standard of review
We review the district court’s factual findings for clear error and its
interpretation and application of the Guidelines, including any cross-reference
provisions, de novo.1
B. Analysis
Faced with a res nova issue for this circuit, viz., under what circumstances
a district court may apply a cross-reference provision pursuant to U.S.S.G. §
2B1.1(c)(3), we begin our analysis at 18 U.S.C. § 1001(a)(2), the criminal statute
prohibiting the making of a false statement. U.S.S.G. Section 2B1.1 — the
provision generally applicable to convictions under § 1001(a)(2) — indicates a
base offense level of six.2 As the Guidelines note, however, because § 1001(a)(2)
prohibits the making of any false statement within the jurisdiction of the
government, a defendant’s conduct will often be “more aptly covered by another
1
United States v. Hicks, 389 F.3d 514, 529 (5th Cir. 2004) (reviewing de novo the
district court’s application of a cross-reference provision for second-degree murder).
2
United States Sentencing Guidelines (“U.S.S.G.”) § 2B1.1(a)(2).
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No. 08-51224
guideline.” 3 For this reason, Section 2B1.1(c)(3) sets out three criteria for
determining whether another, more specific cross-reference provision should be
used for sentencing the defendant on the offense of conviction:
If (A) neither subdivision (1) [pertaining to firearms] nor (2)
[pertaining to arson or explosives] of this subsection applies; [and]
(B) the defendant was convicted under a statute proscribing false,
fictitious, or fraudulent statements or representations generally
(e.g., 18 U.S.C. § 1001 ...); and (C) the conduct set forth in the count
of conviction establishes an offense specifically covered by another
guideline in Chapter Two (Offense Conduct), apply that other
guideline.4
As (a) Garcia’s offense did not involve firearms or arson, (b) he was convicted
under 18 U.S.C. § 1001(a)(2), which proscribes false statements, and (c) the
conduct set forth in his count of conviction does establish an offense “specifically
covered” by another guideline (as discussed below), it was appropriate for the
district court to apply a cross-reference provision to determine Garcia’s base
offense level. The determinative question, though, is whether the district court
applied the correct provision.
3
Id. § 2, app. n. 15.
4
U.S.S.G. § 2B1.1(C)(3) (emphasis added). As Application Note 15 explains,
[s]ubsection (c)(3) provides a cross reference to another guideline in Chapter
Two (Offense Conduct) in cases in which the defendant is convicted of a general
fraud statute, and the count of conviction establishes an offense involving
fraudulent conduct that is more aptly covered by another guideline. Sometimes,
offenses involving fraudulent statements are prosecuted under 18 U.S.C. §
1001, or a similarly general statute, although the offense involves fraudulent
conduct that is also covered by a more specific statute.
Id. § 2, app. n. 15.
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No. 08-51224
As noted, Garcia contends that the district court should have referenced
the provision applicable to the making of a false statement in respect to the
citizenship of another. According to Garcia, the conduct underlying his
conviction is “specifically covered” by 8 U.S.C. § 1185(a)(3), which makes it a
crime “for any person knowingly to make any false statement in an application
for permission to depart from or enter the United States with intent to induce
or secure the granting of such permission either for himself or for another.”5
Pursuant to Appendix A of the Sentencing Guidelines, the appropriate cross-
reference provision for that offense would be either U.S.S.G. § 2L2.1 or § 2L2.2.
Section 2L2.1, which specifically applies to any “False Statement in Respect to
the Citizenship or Immigration Status of Another,” calls for a base offense level
of 11; Section 2L2.2, on the other hand, calls for a base offense level of eight.6 In
response, the government counters that the district court correctly applied
U.S.S.G. § 2L1.1, which specifically covers “Smuggling, Transporting, or
Harboring an Unlawful Alien” and calls for a base offense level of 12.7
We next turn our focus to Appendix A of the Guidelines, which offers
helpful guidance on this issue and “specifies the offense guideline section(s) ...
applicable to [a] statute of conviction.” 8 Unfortunately, the district court in the
instant case did not explain which criminal statute it believed “specifically
5
8 U.S.C. § 1185(a)(3).
6
U.S.S.G. § 2L2.1.
7
Id. § 2L1.1.
8
Id., Appendix A, Introduction. Appendix A further instructs that, “[i]f more than one
guideline section is referenced for the particular statute, use the guideline most appropriate
for the offense conduct charged in the count of which the defendant was convicted.” Id.
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No. 08-51224
covered” Garcia’s conduct. And, there are at least four relevant criminal statutes
listed in Appendix A that might apply: 8 U.S.C. §§ 1324(a)(1)(A)(ii),
1324(a)(1)(A)(iii), 1185(a)(2), and 1185(a)(3). We will review each in turn.
First, 8 U.S.C. § 1324(a)(1)(A)(ii), the statute that the government
contends should be applied here, imposes criminal penalties on any person who
knowing or in reckless disregard of the fact that an alien has come
to, entered, or remains in the United States in violation of law,
transports, or moves or attempts to transport or move such alien
within the United States by means of transportation or otherwise,
in furtherance of such violation of law.9
Second, 8 U.S.C. § 1324(a)(1)(A)(iii) imposes criminal penalties on any
person who
knowing or in reckless disregard of the fact that an alien has come
to, entered, or remains in the United States in violation of law,
conceals, harbors, or shields from detection, or attempts to conceal
harbor, or shield from detection, such alien in any place, including
any building or any means of transportation.10
Pursuant to Appendix A, both of the above statutes should be cross-referenced
to U.S.S.G. § 2L1.1. This is the provision that the district court applied in the
instant case to set Garcia’s base offense level at 12.
Third, 8 U.S.C. § 1185(a)(2) references alien smuggling, making it a crime
for any person to transport or attempt to transport from or into the
United States another person with knowledge or reasonable cause
to believe that the departure or entry of such other person is
forbidden....11
9
8 U.S.C. § 1324(a)(1)(A)(ii).
10
8 U.S.C. § 1324(a)(1)(A)(iii).
11
8 U.S.C. § 1185(a)(2).
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No. 08-51224
Pursuant to Appendix A, this statute, like the other alien-smuggling statutes,
cross references to U.S.S.G. § 2L1.1, which calls for a base offense level of 12.
Fourth, 8 U.S.C. § 1185(a)(3), the statute that Garcia contends should be
applied here, makes it a crime
for any person knowingly to make a false statement in an
application for permission to depart from or enter the United States
with intent to induce or secure the granting of such permission
either for himself or for another.12
Pursuant to Appendix A, this statute — unlike the alien-smuggling statutes —
should be cross-referenced to U.S.S.G. § 2L2.1, which covers “False Statement[s]
in Respect to the Citizenship or Immigration Status of Another” and calls for a
base offense level of 11.13
The government contends that § 1185(a)(3) is inapplicable to the instant
case, as both that statute and U.S.S.G. § 2L2.1 apply primarily to document-
fraud cases. According to the government, the conduct alleged in Garcia’s
indictment — to which he pleaded guilty — clearly supports the district court’s
conclusion that, at least for sentencing purposes, Garcia had engaged in alien
smuggling. Garcia counters that the making of a false statement, the crux of his
offense conduct, is not a required element in any of the alien-smuggling statutes
calling for a base offense level of 12. Further, according to Garcia, there is
nothing in U.S.S.G. § 2L2.1 that expressly limits the applicability of that
provision to document fraud cases.14
12
8 U.S.C. § 1185(a)(3).
13
U.S.S.G., Appendix A.
14
Although we need not determine whether, as the government contends, the
application of U.S.S.G. § 2L2.1 is limited to cases involving document fraud, we note that there
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No. 08-51224
We find persuasive the reasoning of several other circuits which, after
considering this same issue, have held that a sentencing court may apply a
cross-reference provision under U.S.S.G. § 2B1.1(c)(3) only if the application of
that provision is supported by the conduct alleged in the indictment.15 For
example, in United States v. Genoa, the Second Circuit held that a district court
may cross reference another guideline provision “only if the conduct alleged in
the count of the indictment of which the defendant is convicted establishes the
elements of another offense.”16 Similarly, in United States v. Bah, the Eighth
Circuit explained that “a plain reading of [Section 2B1.1(c)(3)] establishes that
the district court may look only to the conduct set forth in the count of conviction
is ample evidence suggesting such a limitation. For example, § 2L2.1 is located in the
Guidelines chapter entitled “Naturalization and Passports” (whereas § 2L1.1, the alien-
smuggling provision, is in the section titled simply “Immigration”). Further, § 2L2.1 includes
a specific enhancement based on the number of documents involved in the fraud. And, finally,
other courts of appeal have held that it is the appropriate provision for, e.g., (1) counterfeiting
social security cards for illegal aliens, United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997)),
(2) submitting false asylum applications on behalf of immigrants, United States v. Walker, 191
F.3d 326 (2d Cir. 1999); and (3) possessing a counterfeit immigration stamp, United States v.
Viera, 149 F.3d 7 (1st Cir. 1998). But, even if Garcia were correct that 8 U.S.C. § 1185(a)(3)
— and, similarly, U.S.S.G. § 2L2.1 — were not limited to cases involving document fraud, we
would doubt that Garcia’s conversation with the border officer could accurately be
characterized as “an application for permission to enter the country” such that it would fall
within the ambit of either provision.
15
See United States v. Genao, 343 F.3d 578, 583 (2d Cir. 2003) (holding that district
court had correctly declined to apply a cross-reference provision under 2B1.1(c)(3) because the
indictment did not allege the exact elements of the cross-referenced offense); see also United
States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006) (adopting Genao and holding that the plain
language of 2B1.1(c)(3) requires that district courts may only look to “the conduct set forth in
the count of conviction” to determine whether the cross-reference provision should apply);
United States v. Kim, 95 Fed. Appx. 857, 861-62 (9th Cir. 2004) (providing that, in order for
the cross-reference provision to apply, “the statutory element had to be established by the
allegations of the indictment”).
16
Genao, 343 F.3d at 583.
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No. 08-51224
when determining whether the cross-reference applies.” 17 Adopting the
reasoning of these other circuits, we hold that a district court may only apply a
cross-reference provision under U.S.S.G. § 2B1.1(c)(3) if the facts alleged in the
count of conviction support the application of that provision.
When we apply this standard to the instant case, we conclude that the
district court did not err when it referred to U.S.S.G. § 2L1.1 to determine
Garcia’s base offense level. Garcia’s “count of conviction” — Count 1 of the one-
count indictment — alleges that he made a false statement about his passenger’s
citizenship to a border officer in an attempt “to aid the female passenger’s entry
into the United States.” The alien-smuggling statute, § 1185(a)(2), expressly
covers this conduct when it makes it a crime for “any person to transport or
attempt to transport from or into the United States another person with
knowledge or reasonable cause to believe that the departure or entry of such
other person is forbidden by this section.”18 The district court was on firm
ground in concluding that Garcia’s base offense level was 12.
17
Bah, 439 F.3d at 427. At least one district court in this circuit has already turned
to these other decisions for guidance. In United States v. Rodriguez, the district court
explained:
While the Fifth Circuit has not addressed this issue, other circuits have adopted
[a] limitation, allowing a district court to cross-reference another guideline
provision only if the conduct alleged in the count of the indictment of which the
defendant is convicted establishes the elements of another offense. Therefore,
to sentence Defendant pursuant to the cross-referenced [provision], the Court
must be able to determine that the conduct described in the count of conviction
in Defendant’s indictment, standing alone, also constitutes a violation of an
offense covered by [the cross-referenced provision].
493 F. Supp. 2d 833, 834 (W.D. Tex. 2007).
18
8 U.S.C. § 1185(a)(2).
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III. CONCLUSION
For the foregoing reasons, the judgment of the district court is, in all
respects,
AFFIRMED.
14