United States v. Encarnacion

United States Court of Appeals
For the First Circuit

No. 00-1450

UNITED STATES,

Appellee,

v.

ERNESTO JOSE ENCARNACION A/K/A VICTOR MELO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Stahl, and Lynch,
Circuit Judges.

Raymond L. Sanchez Maceira on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom Nelson Perez-Sosa, Assistant United States Attorney, Jorge
E. Vega-Pacheco, Assistant United States Attorney, and Guillermo
Gil, United States Attorney, were on brief, for appellee.

February 15, 2001
 STAHL, Circuit Judge. Ernesto Jose Encarnacion appeals

a district court order denying his motion under Fed. R. Crim. P.

5(a) to dismiss his indictment for the government's alleged

failure to bring him before a magistrate judge "without

unnecessary delay." He also appeals his sentence, claiming that

the district court should have departed from the Sentencing

Guidelines based on the facts of his case. We affirm.

I. Background

On January 24, 1999, Encarnacion, a citizen of the

Dominican Republic and a convicted felon previously removed from

the United States for narcotics-related offenses, attempted to

reenter the country through the Luis Munoz Marin International

Airport in San Juan, Puerto Rico. Upon his arrival, a computer

check of his passport by officials of the U.S. Immigration and

Naturalization Service ("INS") revealed that Encarnacion may

have been previously removed for a crime of moral turpitude, and

he was detained in an INS facility. The next day, during an

interview with INS Senior Inspector Fernando Ruz-Bulerin

("Ruz"), Encarnacion admitted his previous deportation.1 At the

end of the interview, Ruz, apparently unaware of the specifics

of Encarnacion's criminal history, told Encarnacion that the

1Before the start of the conversation, Ruz told Encarnacion
that the interview was related to Encarnacion's application to
enter the United States.

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prior order of removal would be reinstated and that Encarnacion

would likely be deported. Encarnacion was detained for seven

additional days prior to being brought before a federal

magistrate judge, a period the government claims it used in

order to obtain documents, such as the immigration judge's

deportation order, needed to resolve definitively Encarnacion's

application to enter the country. As it turned out, upon

receiving and reviewing the INS file, Ruz determined that

criminal charges, rather than deportation, were warranted in

Encarnacion's case, as Encarnacion had previously been convicted

of an aggravated felony and had been deported on that basis.

See 8 U.S.C. § 1326(b)(2) (prohibiting attempted reentry into

the United States by an individual previously deported for an

aggravated felony without advance authorization from the

Attorney General).

After being indicted, Encarnacion moved to have the

charges dismissed on the ground that the eight-day period of

detention prior to the probable-cause hearing constituted

"unnecessary delay" under Fed. R. Crim. P. 5(a). The district

court, in a written memorandum and opinion, found that

Encarnacion's detention by the INS was civil in nature, and that

Rule 5(a) therefore was inapplicable. United States v.

Encarnacion, 56 F. Supp. 2d 151, 159 (D.P.R. 1999).

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 Following the district court's decision, Encarnacion

and the government entered into negotiations that eventually

culminated in a plea agreement. In it, the parties agreed on

the appropriate fine and terms of imprisonment and supervised

release, and the government pledged to recommend a sentence at

the low end of the guideline range. The agreement, however,

also stated (and Encarnacion was duly informed at the change-of-

plea hearing) that, pursuant to Fed. R. Crim. P. 11(e)(1)(B),

the district court ultimately would impose the sentence in

accordance with the guidelines, and that the exact terms of the

sentence would be left to the sound discretion of the district

court. At the sentencing hearing, both Encarnacion and the

government requested that the presentence report's ("PSR")

Category III criminal-history finding be reduced to Category II.

Encarnacion further argued that his was an atypical case

warranting departure from the guidelines, notwithstanding the

PSR's conclusion to the contrary. Noting Encarnacion's multiple

drug offenses before his prior removal, the district court

rejected these requests and sentenced Encarnacion to 46 months'

imprisonment, a term at the low end of the guideline range

produced by the application of a Category III criminal history.

Encarnacion also was sentenced to a term of three years'

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supervised release, and was ordered to pay a special monetary

assessment of $100.

On appeal, Encarnacion challenges the district court's

denial of his motion to dismiss the indictment, as well as his

sentence.

II. Rule 5(a) "Unnecessary Delay"

Encarnacion first asserts that the eight-day detention

prior to his appearance before a federal magistrate judge was an

"unnecessary delay" within the meaning of Fed. R. Crim. P. 5(a),

thereby necessitating dismissal of the charges against him. We

review de novo the district court's construction of the Federal

Rules of Criminal Procedure. United States v. Randazzo, 80 F.3d

623, 627 (1st Cir. 1996).

Rule 5(a), in relevant part, states:

Except as otherwise provided in this rule,
an officer making an arrest under a warrant
issued upon a complaint or any person making
an arrest without a warrant shall take the
arrested person without unnecessary delay
before the nearest available federal
magistrate judge or, if a federal magistrate
judge is not reasonably available, before a
state or local judicial officer authorized
by 18 U.S.C. § 3041.

Attempting to apply this rule to his situation, Encarnacion

argues that, from the moment he admitted his prior deportation

for an aggravated felony to INS officials, his detention became

"criminal" because his admission put the government on

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heightened notice that his attempt to reenter the country was

unlawful. Accordingly, he claims that his right to a prompt

hearing before a magistrate judge was triggered at the moment of

his confession, and that he was denied this right by being

detained seven additional days prior to the probable-cause

hearing. In Encarnacion's view, his eight-day detention was

the government's method of holding him for the sole purpose of

developing criminal charges against him -- a practice that he

claims the government was precluded from utilizing under Rule

5(a).

In response, the government contends that Rule 5(a) has

little bearing on Encarnacion since, prior to his appearance

before the magistrate judge, his case could not be fairly

described as "criminal." The government argues that

Encarnacion's arrest and detention were executed according to

the civil detention provisions of the immigration laws. See 8

U.S.C. § 1357(a)(2). The upshot of this, according to the

government, is that the rights afforded by the Federal Rules of

Criminal Procedure attached only after the U.S. Attorney acted

on Encarnacion's case. The government further argues that, in

this case, the eight-day detention prior to the probable-cause

hearing was necessary to secure adequate evidence of

Encarnacion's prior deportation, as Encarnacion's confession

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standing alone would not suffice to prove the occurrence of

those prior events to the magistrate judge. Finally, the

government argues that Rule 5(a) was followed to the extent

required, in that the U.S. Attorney filed the criminal complaint

on the same day that Ruz received Encarnacion's INS file and

that Encarnacion received a probable-cause hearing within 48

hours of the filing of the complaint.2

Under 8 U.S.C. § 1357(a)(2), INS officials are

empowered to perform the warrantless arrest of "any alien who in

[their] presence or view is entering or attempting to enter the

United States in violation of any law or regulation made in

pursuance of law regulating the admission, exclusion, expulsion,

or removal of aliens . . . ." The statute also requires that

the detained alien "shall be taken without unnecessary delay for

examination before an officer of the [INS] having authority to

2Following the district court's analysis, Encarnacion
argues, and the government seems to agree, that Rule 5(a)
incorporates the Fourth Amendment's requirement of prompt
determination of probable cause. See Gerstein v. Pugh, 420 U.S.
103, 126 (1975) (holding that the Fourth Amendment requires
"prompt" judicial determination of probable cause following a
warrantless arrest); County of Riverside v. McLaughlin, 500 U.S.
44, 56-57 (1991) (determining that promptness in this context
generally requires that the suspect be brought before the
magistrate judge within 48 hours of the warrantless arrest).
While the Rule 5(a) and Fourth Amendment contexts are certainly
"analogous," Anderson v. Calderon, 232 F.3d 1053, 1104 (9th Cir.
2000) (McKeown, J., dissenting), the 48-hour rule is a
requirement of the Fourth Amendment, not Rule 5(a). McLaughlin,
500 U.S. at 56.

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examine aliens as to their right to enter or remain in the

United States." Id. Although § 1357(a)(2) does not, by its

terms, reveal its "civil" or "criminal" character, it is

accompanied by a provision authorizing the INS "to make arrests

for felonies which have been committed and which are cognizable

under any law of the United States regulating the admission,

exclusion, expulsion, or removal of aliens . . . ." Id. §

1357(a)(4) (emphasis added). Section 1357(a)(4), unlike §

1357(a)(2), does not require that the alien be taken before an

INS officer, but rather before "the nearest available officer

empowered to commit persons charged with offenses against the

laws of the United States . . . ."

In giving distinct meaning to both provisions, courts

have read § 1357(a)(2) to apply to arrests of aliens for "status

offenses," or immigration-related offenses (such as illegal

entry into the United States) that only apply to aliens, while

interpreting § 1357(a)(4) to apply to arrests of aliens for

"nonstatus offenses," i.e., crimes (such as assault) whose

elements could be satisfied by any person, alien or not.

Encarnacion, 56 F. Supp. 2d at 154; cf. United States v. Sotoj-

Lopez, 603 F.2d 789, 791 (9th Cir. 1979) (per curiam) (finding

that § 1357(a)(2) does not encompass arrests and detentions for

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nonstatus offenses).3 This distinction is crucial to the

government's argument, as courts have held, in turn, that Rule

5(a) generally does not protect § 1357(a)(2) civil detainees.

United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000) (per

curiam), petition for cert. filed, 69 U.S.L.W. ___ (U.S. Jan.

23, 2001) (No. 00-8139); United States v. Cepeda-Luna, 989 F.2d

353, 358 (9th Cir. 1993); United States v. Valente, 155 F. Supp.

577, 579 (D. Mass. 1957) (Aldrich, J.).

We believe that an offense under 8 U.S.C. § 1326(b)(2)

qualifies as a "status offense." By definition, the act of

attempting to reenter the United States as a removed alien

without the express consent of the Attorney General is an

immigration-related offense that only aliens can commit.

Moreover, and more to the point, the INS's primary purpose in

investigating Encarnacion was, from the beginning, civil. Even

though the documents contained in Encarnacion's INS file

ultimately served as the catalyst for the filing of felony

charges, the reason that the INS retrieved the file in the first

place was to act on what they thought was a simple reinstatement

3Encarnacion cites Sotoj-Lopez in support of the proposition
that Rule 5(a) should apply to his arrest and detention. In
that case, however, the Ninth Circuit found that "section
1357(a)(2) relaxed Rule 5(a) . . . for the examination of an
alien's right to remain in the United States" and that the INS
need comply with Rule 5(a) only "if the alien is being charged
with a non-status offense." 603 F.2d at 791.

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of the prior removal order -- a civil matter. Upon receipt of

Encarnacion's file, however, Ruz learned for the first time of

Encarnacion's prior aggravated felonies, a discovery that caused

him to change the treatment of the case from a deportation

matter to a referral of possible criminal activity to the U.S.

Attorney. It is in this context that Encarnacion was arrested

and subsequently detained under the civil authority of 8 U.S.C.

§ 1357(a)(2).

Furthermore, we do not believe that Encarnacion's civil

detention was a pretext for holding him in order to develop

other criminal charges, nor do we find that his admission of

illegal entry to INS officials transformed his case from a civil

case to a criminal one. From the moment he was stopped at the

San Juan airport, the INS was required by law to determine

whether Encarnacion's application to enter the country was

valid, and to this end, it immediately put into motion the

administrative process of determining Encarnacion's status. His

interview with Ruz, mandated by the "taken without unnecessary

delay . . . before an officer of the [INS]" language of §

1357(a)(2), amplified the INS's suspicions that Encarnacion's

attempted entry was unlawful. But only after receiving the INS

file on Encarnacion containing the prior deportation order had

Ruz secured the "probable cause" necessary to initiate the

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criminal process under the applicable law and regulations. See

Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir.

1995) ("[A]lthough the lack of documentation or other admission

of illegal presence may be some indication of illegal entry, it

does not, without more, provide probable cause of the criminal

violation of illegal entry.") (emphasis added) (quoting Gonzales

v. City of Peoria, 722 F.2d 468, 476-77 (9th Cir. 1983)); 8

C.F.R. § 241.8(a)(1) (requiring INS officers to obtain prior

order of deportation in determining whether reinstatement-of-

removal order is appropriate). Consequently, Encarnacion's case

did not become criminal until Ruz's contact with the U.S.

Attorney, and after that point, Encarnacion was brought

expeditiously before the federal magistrate judge.

Certainly, in most cases, prompt action by INS

officials (and the availability of today's parcel-delivery

services) should make it possible to transmit files between INS

offices more quickly than seven days. Here, however,

Encarnacion has presented no evidence (nor do we find any in the

record) indicating that his detention was a dilatory tactic

employed by the government for some impermissible purpose.4

4
Like the district court, we acknowledge that the difference
between civil and criminal detentions may appear formalistic,
and that in practical terms an unnecessarily long detention
under civil law is no better for the detainee than one under the
criminal law. We have held that aliens in Encarnacion's

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 Having determined that Encarnacion's arrest and

detention were civil and nonpretextual, we have little trouble

holding that Rule 5(a) did not render his eight-day detention

unlawful. We agree with the Eleventh and Ninth Circuits'

respective holdings in Noel, 231 F.3d at 837, and Cepeda-Luna,

989 F.2d at 358, that Rule 5(a) is inapplicable to civil

deportation arrests and detentions under 8 U.S.C. § 1357(a)(2).

Accordingly, we affirm the district court's denial of

Encarnacion's motion to dismiss the indictment.5

III. Application of the Sentencing Guidelines

Encarnacion's other argument is that the district court

erred in rejecting the joint request under the plea agreement to

situation who are unlawfully detained may petition for habeas
corpus relief under 28 U.S.C. § 2241, even after the passage of
the Illegal Immigration Reform and Immigrant Responsibility Act,
Pub. L. No. 104-208, 110 Stat. 3009 (1996). Mahadeo v. Reno,
226 F.3d 3, 10 (1st Cir. 2000), petition for cert. filed, 69
U.S.L.W. 3418 (U.S. Dec. 11, 2000) (No. 00-962).
5
Several courts have held that in cases where an unnecessary
delay before the probable-cause hearing is not used to subject
defendant to unwarranted interrogation, Rule 5(a) does not
provide a basis for dismissal of the indictment because
defendant cannot be said to have been prejudiced by the delay.
United States v. Morrison, 153 F.3d 34, 56 (2d Cir. 1998);
United States v. Nazarenus, 983 F.2d 1480, 1482-83 (8th Cir.
1993); Lovelace v. United States, 357 F.2d 306, 310 (5th Cir.
1966). In light of our determination that Rule 5(a) does not
apply to Encarnacion's civil detention, we need not decide
whether Rule 5(a) can ever be a basis for dismissal of an
indictment absent evidence of unwarranted interrogation during
the period of detention.

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lower his criminal-history category, and in refusing to depart

from the guidelines based on the "atypical" facts of his case.

On this later point, he claims that his attempted reentry into

the United States was merely an attempt to be reunited with his

wife and children (who reside in this country) and that he

possesses a sincere desire to enter drug rehabilitation so that

he may take better care of his family. This type of argument,

however, is squarely foreclosed by the guidelines themselves.

As we have frequently held, a district court's refusal to depart

from the guidelines may not be reviewed unless the court

misconstrued its legal authority to depart. See, e.g., United

States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir. 2000). In

this case, the district court did not misapprehend its legal

authority under the guidelines; its decision not to depart

rested solely on its reasonable assessment of the facts of

Encarnacion's case. Thus there is no basis to disturb the

sentence imposed by the district court.

Affirmed.

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