* District Judge, Southern District of Texas, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-60653

 

UNITED STATES OF AMERICA,Plaintiff-Appellee,

 

VERSUS

ROBERTO FLORES-PERAZA, Defendant-Appellant,

 

Appeal from the United States District Court

for the Southern District of Texas

 

(July 3, 1995)

Before KING and JONES, Circuit Judges, and LAKE,* District Judge.

Sim Lake, District Judge:

Roberto Flores-Peraza appeals the district court's denial of

his motion to dismiss an indictment charging him under 8 U.S.C.

§ 1326(a) on grounds of double jeopardy because of his previous

conviction under 8 U.S.C. § 1325(a). We AFFIRM.

I.

Roberto Flores-Peraza (Flores), a citizen of El Salvador,

entered the United States at Hidalgo, Texas, on May 28, 1994, by

wading across the Rio Grande River. On May 31, 1994, he was

arrested by Border Patrol agents. Flores identified himself to the
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arresting agents as Guadalupe Peraza-Gutierrez and claimed to be a

citizen of Mexico. On June 1, 1994, the government charged Flores

by complaint with the misdemeanor offense of unlawful entry at a

place other than as designated by immigration officers in violation

of 8 U.S.C. § 1325(a). That same day Flores was taken before a

United States Magistrate Judge where he waived counsel, pleaded

guilty, and was sentenced to a ten-dollar cost assessment and a

five-year term of probation with a special condition that he not

return illegally to the United States.

The next day an FBI fingerprint comparison established Flores'

identity as Roberto Flores-Peraza, a Salvadoran national who had

been arrested and deported from the United States in October 1993

and who had not obtained permission of the Attorney General to

reenter the United States. On June 21, 1994, Flores was indicted

for being found in the United States after having been arrested and

deported and without having obtained consent of the Attorney

General to reenter the country in violation of 8 U.S.C. § 1326.

Flores moved to dismiss the indictment because it was barred by the

Fifth Amendment's double jeopardy clause since he had already been

prosecuted and convicted of the lesser included offense of illegal

entry. The district court denied the motion and Flores timely

noticed his appeal. 

II.

This court reviews the district court's denial of Flores'

double jeopardy claim de novo. United States v. Cruce, 21 F.3d 70,

74 (5th Cir. 1994); United States v. Singleton, 16 F.3d 1419, 1421
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(5th Cir. 1994); Abney v. United States, 431 U.S. 651, 663-665, 97

S.Ct. 2034, 2042-2043 (1977)(conducting independent review of whole

record regarding petitioner's double jeopardy claim). Whether the

Fifth Amendment's double jeopardy clause bars successive prosecutions for improper entry and reentry of deported alien arising from

the same conduct is a question of first impression in this circuit.

III.

Flores argues that his prosecution for violating 8 U.S.C.

§ 1326(a) is barred by the double jeopardy clause due to his

previous conviction for violating 8 U.S.C. § 1325(a) because the

misdemeanor offense of improperly entering the United States is a

lesser included offense of the felony offense charged under 8

U.S.C. § 1326(a). Citing Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180 (1932), the government responds that Flores'

prosecution for violating § 1325(a) does not bar prosecution under

§ 1326(a) because the two statutes define separate offenses for

purposes of double jeopardy analysis.

A. Double Jeopardy Analysis

The double jeopardy clause of the Fifth Amendment provides:

"[N]or shall any person be subject for the same offence to be twice

put in jeopardy of life or limb." U.S. Const. amend. V. The

Supreme Court has interpreted the double jeopardy clause to protect

against multiple prosecutions and multiple punishments for the

"same offense." Cruce, 21 F.3d at 72, citing North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969). Except for
 

1 Grady prohibited "a subsequent prosecution if, to establish

an essential element of an offense charged in that prosecution, the

government will prove conduct that constitutes an offense for which

the defendant has already been prosecuted." 495 U.S. at 510, 110

S.Ct. at 2087. Less than three years later, in United States v.

Dixon, U.S. , , 113 S.Ct. 2849, 2860 (1993), the Court

rejected the "same conduct" test announced in Grady as "wholly

inconsistent with earlier Supreme Court precedent and with the

clear common-law understanding of double jeopardy."

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a brief period following the Supreme Court's decision in Grady v.

Corbin, 495 U.S. 508, 110 S.Ct. 2084 (1990), the focal point of

double jeopardy analysis has always been the "offense" for which

the defendant was prosecuted and punished -- not the particular

conduct criminalized by that offense.1 See Cruce, 21 F.3d at 72-73

n.3. In Gavieres v. United States, 220 U.S. 338, 345, 31 S.Ct.

421, 423 (1911), the Court held that even though the defendant only

made one statement double jeopardy principles did not preclude a

second prosecution for that statement simply because the same

statement was involved. Similarly, in Blockburger, 284 U.S. at

304, 52 S.Ct. at 182, the Court held that even though the defendant

only made one sale of narcotics double jeopardy principles did not

preclude a second punishment for the same conduct because that

conduct constituted two separate offenses. See Cruce, 21 F.3d at

72-73; Dixon, U.S. at , 113 S.Ct. at 2860.

To determine whether sections 1325(a) and 1326(a) punish the

same offense the court must apply the Blockburger same-elements

test. The Blockburger test requires the court to compare the two

statutes and ask "whether each provision requires proof of an

additional fact which the other does not." 284 U.S. at 304, 52

S.Ct. at 182. Unless each statute requires proof of at least one
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factual element not also found in the other statute, the statutes

"fail" the Blockburger test and the defendant may not be punished

under both statutes absent "a clear indication of contrary

legislative intent." Whalen v. United States, 445 U.S. 684, 692,

100 S.Ct. 1432, 1438 (1980).

 Because neither party disputes that a conviction under

§ 1326(a) requires proof of elements not required by § 1325(a),

resolution of the double jeopardy issue turns on whether conviction

under § 1325(a) requires proof of at least one factual element not

required for conviction under § 1326(a). As the court explained in

Singleton, the question to be decided is not whether Flores' violation of § 1326(a) included a violation of § 1325(a), but whether

all violations of § 1326(a) necessarily include violations of

§ 1325(a). 16 F.3d at 1422.

B. Elements of § 1326(a) and § 1325(a) 

The indictment charges Flores with being "an alien who had

been arrested and deported, and having not obtained the consent of

the Attorney General . . . for admission into the United States,

was thereafter found in the United States at Laredo, Texas" in

violation of 8 U.S.C. § 1326. R. 1. 18 U.S.C. § 1326(a) provides:

(a) . . . any alien who --

(1) has been arrested and deported or excluded and

deported, 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
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alien's reapplying for admission; or (B) with

respect to an alien previously excluded and

deported, 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.

This court has read § 1326(a) to require proof of four elements to

obtain a conviction: (1) alienage, (2) arrest and deportation,

(3) reentry into or unlawful presence in the United States, and

(4) lack of the Attorney General's consent to reenter. United

States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-1132 (5th Cir.

1993).

The misdemeanor complaint to which Flores pleaded guilty

charged him with improperly entering the United States at a place

other than as designated by immigration officers in violation of

8 U.S.C. § 1325(a). Section 1325 prohibits an alien from entering

or attempting to enter the United States by three means: 

 Any alien who (1) enters or attempts to enter the

United States at any time or place other than as designated by immigration officers, or (2) eludes examination

or inspection by immigration officers, or (3) attempts to

enter or obtains entry to the United States by a willfully false or misleading representation or the willful

concealment of a material fact, shall, for the first such

commission of any such offense, be fined under Title 18

or imprisoned not more than 6 months, or both, and for a

subsequent commission of any such offense, be fined under

Title 18, or imprisoned not more than 2 years, or both.

C. Discussion

The district court found that the two charges against Flores

pass the Blockburger same-elements test:

Each offense requires proof of a fact that the other does
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not. For example, § 1326 requires the Government to

prove that the defendant has previously been officially

deported from this country, an element not found in

§ 1325. On the other hand, § 1325 -- at least the

subpart under which this Defendant was prosecuted --

required the Government to prove that the Defendant

entered the United States at a place other than one

designated by immigration officers. Section 1326

requires no such proof. For that matter, § 1326 does not

require the Government to prove that a defendant entered

the country by eluding examination or inspection of

immigration officers or by making a false statement. To

repeat, a defendant violating § 1326 very likely has

violated at least one of the three prongs of § 1325. The

fact remains, however, that a defendant can nevertheless

be convicted of § 1326 without any showing of precisely

how he entered the country. The government need only

show that he was previously deported, did not thereafter

obtain permission to return, and was then found in the

United States.

R. 20-31.

Flores argues that the district court erred in concluding that

he could be convicted of violating § 1326(a) without any showing of

precisely how he entered the country. To support his argument

Flores cites United States v. Canals-Jimenez, 943 F.2d 1284, 1288

(11th Cir. 1991), for the proposition that the term "found in" as

used in § 1326(a) "applies only to situations in which an alien is

discovered in the United States after entering the country surreptitiously by bypassing recognized immigration ports of entry." See

also United States v. DiSantillo, 615 F.2d 128, 135 (3d Cir. 1980).

Flores argues that this showing of surreptitious entry is a

restatement of the particular element of the § 1325(a) offense for

which he was convicted -- entering at a place other than as

designated by immigration officers. Because he has already been

convicted of improper entry under § 1325(a) for his "surreptitious

entry" Flores argues that he cannot be prosecuted again for
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improper reentry under § 1326(a) based on the same surreptitious

entry. Flores argues that the two statutes fail the Blockburger

test because proof of the § 1326(a) violation subsumes proof of the

§ 1325(a) violation, making the § 1325(a) violation a lesser

included offense of the § 1326(a) violation. 

We are not persuaded by Flores' argument. A determination

that Flores' § 1325(a) conviction bars his prosecution under

§ 1326(a) because he entered the United States at a time or place

other than as designated by immigration officers, and that such

conduct is subsumed by the definition of "found in" adopted by the

DiSantillo and Canals-Jimenez courts, would be tantamount to applying the same conduct test recognized in Grady, 495 U.S. at 510, 110

S.Ct. at 2087, but rejected in Dixon, U.S. at , 113 S.Ct. at

2860, instead of the same-elements test required by Blockburger.

To determine whether the double jeopardy clause bars Flores'

successive prosecution under § 1326(a) after having been convicted

under § 1325(a), Blockburger requires the court to focus on the

statutory elements of the offenses defined by § 1325(a) and

§ 1326(a) and not on the application of those elements to the facts

of this specific case. Iannelli v. United States, 420 U.S. 770,

785 n.17, 95 S.Ct. 1284, 1293 n.17 (1975), United States v.

Woodward, 469 U.S. 105, 108, 105 S.Ct. 611, 612 (1985)(per curiam).

The question for the court to determine is not, as Flores argues,

whether his specific violation of § 1326(a) necessarily encompassed

or included his specific violation of § 1325(a), but whether all

violations of § 1326(a) constitute violations of § 1325(a).
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Singleton, 16 F.3d at 1422. 

Obviously, an alien "found in" the United States must have

entered the United States. But unlike § 1325(a), which requires

the government to prove how the entry was effected, § 1326(a) only

requires a showing of the mere fact of entry. See United States v.

Ortiz-Villegas, 49 F.3d 1435 (9th Cir. 1995)(rejecting defendant's

contention that he could not be convicted of being "found in" the

United States absent proof of reentry because "[t]he plain language

of the statute does not suggest that surreptitious entry is a prerequisite to prosecution for being 'found in' the United States");

United States v. Whittaker, 999 F.2d 38, 41 (2d Cir. 1993)("We thus

reach the question of what section 1326 criminalizes. The Statute

is designed to punish an alien who, following his deportation . . .

and without the permission of the Attorney General, attempts to

reenter or enters or, having reentered remains illegally in the

country until he is found here, i.e., his presence is discovered."); United States v. Crawford, 815 F. Supp. 920, 924 (E.D. Va.

1993), aff'd, 18 F.3d 1173 (4th Cir.), cert. denied, 115 S.Ct. 171

(1994)(stating that "the plain language of § 1325(a) defines the

underlying 'offense' in the statute to be improper entry into the

United States based on the manner of entry, not on the mere fact of

an entry").

IV.

Because we conclude that § 1326(a) only requires proof of

entry, while § 1325(a) requires additional proof of how entry was

effected, the order of the district court denying Flores' motion to

dismiss on grounds of double jeopardy is AFFIRMED and this action
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is REMANDED for trial.