May 28, 2009; see amended opinion filed June 23, 2009
Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. CR-06-00203-JAH-1.
The opinion of the court was delivered by: Wardlaw, Circuit Judge
Argued and Submitted February 3, 2009 -- Pasadena, California
Before: Harry Pregerson, Susan P. Graber, and Kim McLane Wardlaw, Circuit Judges.
Cosme Medina-Villa ("Medina"), also known as Cosme Medina-Maella, returns to our court, again convicted of attempted re-entry into the United States after removal in violation of 8 U.S.C. § 1326. He was sentenced to a sixty-month term of imprisonment and three years of supervised release, following a sixteen-level increase in his offense level for a prior conviction under California Penal Code section 288(a), which criminalizes lewd and lascivious acts on a child under fourteen. We must decide whether, in light of EstradaEspinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), a conviction under section 288(a) constitutes "sexual abuse of a minor," qualifying it as a "crime of violence" that warrants the sixteen-level increase under U.S.S.G. § 2L1.2. We hold that it does.
We must also decide whether the district court erred in denying (1) Medina's motion to dismiss the indictment grounded in the government's deportation of material witnesses without first informing Medina of his right to retain them, and (2) Medina's motion to suppress his initial statements to the field agent for failure to give Miranda warnings. We affirm the district court's rulings and, under Almendarez- Torres v. United States, 523 U.S. 224 (1998), reject Medina's argument on appeal that his conviction and sentence are unconstitutional.
I. FACTUAL AND PROCEDURAL BACKGROUND
Medina, who was seen by a border patrol agent running from the fence between the United States and Mexico along with two other individuals, was apprehended after getting into the passenger seat of a parked car. Blocking the car's escape with his own parked vehicle, Agent Mills approached the suspects with his gun drawn and ordered the driver out of the car. Mills then asked Medina about his citizenship and immigration status, and Medina answered that he was a Mexican citizen with no immigration papers. Medina was then arrested, waived his Miranda rights, and was interrogated at a border patrol station. He told the agents that he was forced to cross the border under threat of physical harm. He explained that a smuggler tricked him to get him close to the border with the promise of work, obtained the phone number of Medina's family members and, under threat of injury, told them to pay $1,300. Medina also stated that he was kept in the smuggler's house for several days without food and that he was beaten when he tried to turn back from the fence. The border patrol agents then interviewed on the record the two other Mexican nationals apprehended with Medina. After determining that the witnesses did not corroborate Medina's allegations of duress, the government deported them to Mexico. Neither Medina nor his counsel received an opportunity to interview the witnesses before they were deported.
Before trial, Medina moved to dismiss the indictment on the grounds that he was not advised of his right to retain material witnesses and that the government acted in bad faith in deporting the witnesses. After holding an evidentiary hearing, the district court denied the motion, finding that the government did not act in bad faith and that the deported witnesses would not have provided testimony favorable to Medina.
Medina also moved to suppress the statements he made to Mills during the questioning immediately upon apprehension ("field statements"). Following another evidentiary hearing, the district court denied the motion, finding that Medina was not in custody during that time. The jury convicted Medina of attempted re-entry into the United States after removal in violation of 8 U.S.C. § 1326.
Medina's prior criminal history was particularly relevant to the sentence imposed by the district court. In 1999, Medina- known at that time as Medina-Maella-was convicted of violating California Penal Code section 288(a), which prohibits lewd and lascivious acts on a child under fourteen, and was subsequently deported. He attempted re-entry soon thereafter and was convicted under 8 U.S.C. § 1326, with a sixteen-level increase under U.S.S.G. § 2L1.2 for the prior section 288(a) conviction. In a published opinion, we upheld the district court's conclusion that a conviction under California Penal Code section 288(a) is a categorical "crime of violence," mandating the sixteen-level increase under U.S.S.G. § 2L1.2. See United States v. Medina-Maella, 351 F.3d 944 (9th Cir. 2003). Medina was again deported.
At issue here is Medina's second unlawful re-entry. For this most recent violation of § 1326, the district court sentenced Medina to sixty months' imprisonment and three years' supervised release, again applying the sixteen-level increase for the prior conviction of a "crime of violence," pursuant to U.S.S.G. § 2L1.2. The district court relied squarely on our Medina-Maella decision, but also noted that, "within the contemporary meaning, that offense . . . is categorically a crime of violence . . . even without Medina." Medina timely appealed.
II. JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction ...