     Case: 19-50770      Document: 00515476227         Page: 1    Date Filed: 07/02/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                      No. 19-50770                         July 2, 2020
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


              Plaintiff - Appellee

v.

ADRIANA MONTES-DE OCA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:19-CR-1508-1
                             USDC No. 3:19-MJ-549-1


Before KING, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Adriana Montes-De Oca appeals her conviction following a bench trial
for the misdemeanor offense of eluding examination or inspection by Customs
and Border Protection (“CBP”) officers in violation of 8 U.S.C. § 1325(a)(2). She
argues that the evidence was insufficient to support her conviction. For the
following reasons, we affirm.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                          STANDARD OF REVIEW
      Where an appeal involves the district court’s affirming a misdemeanor
conviction by a magistrate judge (“MJ”), we review “the magistrate judge’s
findings of fact for clear error and conclusions of law de novo.” United States v.
Vasquez-Hernandez, 924 F.3d 164, 168 (5th Cir. 2019) (internal quotation
marks and citation omitted). We also consider “the evidence in the light most
favorable to the verdict, deferring to the reasonable inferences of fact drawn by
the trial court.” United States v. Lee, 217 F.3d 284, 288 (5th Cir. 2000) (citing
United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993)). “[A] finding is
‘clearly erroneous’ when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948). “Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 400-01 (1990) (citation and quotation omitted);
see also United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949) (finding that
a trial court’s “choice between two permissible views of the weight of evidence
is not ‘clearly erroneous’” where the evidence “would support a conclusion
either way”).
                               BACKGROUND
      On an evening in January 2019, Montes-De Oca walked northbound on
the Bridge of the Americas Port of Entry, which connects Ciudad Juárez,
Mexico with El Paso, Texas. The bridge is comprised of several lanes for traffic
traveling northbound and southbound. In the northbound lanes from Mexico
into the United States, passenger vehicle lanes are aligned to the east with one
pedestrian lane called a “catwalk” which is aligned to the east by cargo export
lanes. For safety reasons, the pedestrian “catwalk” is fully enclosed with mesh
caging and no access points to the vehicle lanes. A pedestrian passing over the
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                                No. 19-50770
bridge to reach the northside inspection station must present admission
documents to CBP officers.
      At some point, Montes-De Oca was observed moving on foot in the
northbound vehicle lane and was then spotted near an eagle statue located at
the convergence of the northbound and southbound vehicle lanes on the United
States side. Montes-De Oca jumped the barrier between the northbound and
southbound vehicle lanes, proceeded to head west, and then walked north
(against southbound traffic) toward the United States. A CBP officer alerted
other officers about a “possible runner” trying to enter the United States
without inspection through the southbound lanes. Montes-De Oca was
observed “walking rapidly northwards” in the southbound cargo export lane
which was backed up with semi-truck traffic.
      Officer Michael Dean Keefe approached Montes-De Oca in the
southbound export cargo lane and placed a hand on her to prevent her from
fleeing. Montes-De Oca admitted that she had no documents that would have
authorized her admission to the United States and that she was a citizen of
Mexico. She was placed in handcuffs and escorted to a “passport control
secondary” station. Upon further questioning by CBP officers, Montes-De Oca
explained that she was “going for a walk,” found herself in the middle of semi-
trucks, became afraid, and walked towards the southbound pedestrian
catwalk. Montes-De Oca also stated that she was going to the end of that
catwalk “to see what was going on there.” She then told the officers that she
was returning to Mexico, that her children and husband live in the United
States, and that she tried to obtain a visa but was unsuccessful. After her
fingerprints were digitally scanned, database records revealed that she was
voluntarily removed from the United States in April 2000.




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                                  No. 19-50770
      Montes-De Oca was charged with 8 U.S.C. § 1325(a)(2) for being an alien
who eluded examination or inspection by CBP officers. The MJ determined
after a bench trial that:
      the sum total of the evidence was—and the—the bulk of it came
      from [CBP Officer] Michael Keefe, whose testimony reflected that
      [Montes-De Oca] was in the southbound truck lane headed north
      into the United States walking briskly, as it turns out, without
      documents. She made an admission that she was a citizen of
      Mexico. [The MJ] heard testimony that but for Agent Osorio’s
      spotting of her, there was nobody there in the southbound area
      who would have done an inspection. And the statute requires the
      eluding of examination or inspection by Customs and Border
      Protection officials or by any immigration officials. [The MJ found]
      beyond a reasonable doubt that the government has proven each
      and every element.

The MJ found Montes-De Oca guilty and sentenced her to 111 days or time
served, whichever period was less.
      Montes-De Oca appealed to the district court arguing that the evidence
presented at trial was legally insufficient to convict her of violating § 1325(a)(2)
because the government did not establish that she made an “entry” into the
United States and that she intended to evade CBP officers. The district court
determined that a rational trier of fact could find Montes-De Oca guilty beyond
a reasonable doubt because the Government was not required to prove “entry”
under § 1325(a)(2) and the Government demonstrated that Montes-De Oca was
an alien who acted knowingly to elude examination by immigration officers.
After the district court affirmed her conviction, Montes-De Oca timely
appealed. See 28 U.S.C. § 1291.
                                  DISCUSSION
      On appeal, Montes-De Oca contends that (1) the Government had to
prove “entry” to present sufficient evidence for her § 1325(a)(2) conviction and
(2) the Government cannot demonstrate any evidence of her actual or

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                                  No. 19-50770
intentional evasion of inspection by immigration officers. We review each
contention in turn.
      A. Whether § 1325(a)(2) requires proof of “entry”
      When determining the elements of an offense, “[w]e begin, as usual, with
the statutory text.” Maslenjak v. United States, 137 S. Ct. 1918, 1924 (2017).
Section 1325(a)(2) provides that “[a]ny alien who . . . eludes examination or
inspection by immigration officers . . . shall, for the first commission of any
such offense, be fined under Title 18 or imprisoned not more than 6 months, or
both.” 8 U.S.C. § 1325(a)(2).
      “[T]he   relevant   phrase—eludes      examination     or   inspection   by
immigration officers, 8 U.S.C. § 1325(a)(2)—has remained unchanged since it
was first used in 1929, [and] it presumptively retains its original meaning,”
United States v. Corrales-Vazquez, 931 F.3d 944, 947-48 (9th Cir. 2019)
(internal quotations omitted) (citing Whitfield v. United States, 574 U.S. 265
(2015)). At the time of Congress’s enactment of the statute, “elude” meant “to
befool, delude”; “to escape by dexterity or stratagem”; “to evade compliance
with or fulfilment of (a law, order, demand, request, obligation, etc.)”; “to slip
away from”; or “to remain undiscovered or unexplained.” Oxford English
Dictionary 97 (1933); see also Webster’s New Int’l Dictionary of the English
Language 713 (1929) (defining “elude” as “to delude, befool, frustrate”; “to
avoid slyly” or “evade”; or “to escape discovery or explanation”).
      We find no reason to adopt Montes-De Oca’s additional requirement of
“entry” as an element of § 1325(a)(2). Montes-De Oca cites to the BIA decision,
Matter of Martinez-Serrano, 25 I & N Dec. 151, 153-54 (BIA 2009) which
offered a three-part definition of the term “entry” in the context of a defendant
aiding and abetting aliens eluding examination and inspection by immigration
officers in violation of § 1325(a)(2). However, that case arose from an
immigration court in Arizona, and the BIA, unlike our court, was bound to
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                                  No. 19-50770
apply the Ninth Circuit’s decisions. See Peters v. Ashcroft, 383 F.3d 302, 305
n.2 (5th Cir. 2004) (“[T]he BIA is bound only by this circuit’s decisions.”).
      Montes-De Oca also seeks support from United States v. Flores-Peraza,
where we noted that “§ 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.” 58 F.3d 164, 166 (5th Cir. 1995) (emphasis added). However, the
defendant in Flores-Peraza was convicted for the “misdemeanor offense of
unlawful entry at a place other than as designated by immigration officers
[under § 1325(a)(1)]” which explicitly requires proof of “entry.” Id. at 165; see
also 8 U.S.C. § 1325(a)(1) (“[A]ny alien who (1) enters or attempts to enter the
United States at any time or place other than as designated by immigration
officers, . . . shall, for the first commission of any such offense, be fined under
title 18 or imprisoned not more than 6 months, or both . . .”) (emphasis added).
      Unlike the defendant in Flores-Peraza, Montes-De Oca was convicted
under § 1325(a)(2). As the district court correctly found, we cannot “read ‘entry’
as an element into § 1325(a)(2)” as that section’s subpart “does not use the term
‘entry.’” Indeed, the Fifth Circuit Pattern Jury Instructions do not require proof
of entry, stating that in order for a jury to find the defendant guilty of §
1325(a)(2), the Government must prove that (1) the defendant was an alien
and (2) the defendant knowingly eluded examination by the immigration
officers. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases) 2.02B
(2019).
      B. Whether § 1325(a)(2) requires proof of “specific intent”
      Montes-De Oca also argues that the government cannot demonstrate any
evidence of her actual or intentional evasion of inspection at the inspection
point. “[O]ur circuit’s jurisprudence indicates that general intent is the default
mental standard.” United States v. Berrios-Centeno, 250 F.3d 294, 298 (5th Cir.
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2001). Other courts have similarly held that § 1325(a)(2) is a general intent
crime. See, e.g., United States v. Cruz-Garcia, No. 18MJ2260-RNB-MMA, 2018
WL 8867808, at *1 (S.D. Cal. Aug. 31, 2018) (“Section 1325(a)(2) is a general
intent crime . . .”); United States v. Santiago-Ortega, No. 18MJ3320-WVG-
MMA, 2018 WL 9782517, at *1 (S.D. Cal. Sept. 21, 2018) (same); United States
v. Gloria-Martinez, No. 18MJ3412-RNB-MMA, 2018 WL 9437360, at *1 (S.D.
Cal. Oct. 17, 2018) (same).
       “[G]eneral intent concerns willful and knowing acts . . . .” Berrios-
Centeno, 250 F.3d at 299. “Thus, a defendant may not specifically intend to act
unlawfully, but he did intend to commit the act.” Id. (internal citations and
quotations omitted). To demonstrate that she did not intend to knowingly
elude examination by immigration officers, Montes-De Oca relies primarily on
CBP officer Jorge Osorio’s testimony stating it was “possible” that Montes-De
Oca’s intent was to go back to Mexico. 1 Even if this a plausible view of the
evidence, the MJ’s decision to choose an equally (if not more) permissible view
is not “clearly erroneous.” See Yellow Cab Co., 338 U.S. at 342.
       Moreover, the totality of evidence indicates that a reasonable factfinder
could infer that Montes eluded inspection knowingly. Rosemond v. United
States, 572 U.S. 65, 78 n.9 (2014) (noting that “the factfinder can draw
inferences about a defendant’s intent based on all the facts and circumstances



       1 Montes-De Oca also claims that she never intended to present herself at a primary
inspection area at the Bridge of the Americas and that CBP officers allow pedestrians to
return to Mexico if they no longer wish to proceed through inspection and are already in the
northbound catwalk. However, we need not find that Montes-De Oca reached a point of
irrevocable commitment to cross the border for a conviction under § 1325(a)(2). Montes-De
Oca made the decision to act unlawfully by leaving the enclosed catwalk which routed
pedestrians toward the northside inspection point, where she could have formally asked to
return to Mexico, and by crossing several lanes of southbound vehicle traffic. Her actions are
sufficient for the requisite finding of knowingly “eluding,” which means evading compliance
with orders, remaining undiscovered, or slipping away. See Oxford English Dictionary 97
(1933).
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                                 No. 19-50770
of a crime’s commission”). Montes-De Oca admits that she left the enclosed
northbound catwalk, that she crossed the barrier between northbound and
southbound traffic, and that she proceeded to walk north against southbound
traffic, all while ignoring signs in English and Spanish that directed
pedestrians like her to the northside inspection station. When she was stopped,
CBP officers testified that she was “[a]bout as far as you can get” from that
pedestrian inspection area. After further questioning, Montes-De Oca gave a
variety of explanations for her actions—she “was going for a walk”; she
suddenly found herself in the middle of semi-trucks and became afraid; she
wanted “to see what was going on [at end of the southbound pedestrian
walkway]”; and she stated she wanted to return to Mexico, indicating an
awareness of being in the United States. 2 She also told CBP officers that her
immediate family lived in the United States, that she previously tried to obtain
a visa to legally enter the United States but was unsuccessful, and that she
was a Mexican citizen. It was also revealed that she was voluntarily removed
from the United States in April 2000.
      In sum, we find no clear error and are not left with a definite or firm
conviction that a mistake was made in the lower courts’ factual
determinations. See Gypsum Co., 333 U.S. at 395; Cooter, 496 U.S. at 400.
Viewing the evidence and drawing all inferences in favor of the verdict, a
reasonable factfinder could conclude that the evidence supported Montes-De
Oca’s conviction.
                               CONCLUSION
      For these reasons, we AFFIRM.




      2We also note that the MJ held a competency hearing and found Montes-De Oca
competent to stand trial.
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