                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 04-50390
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-03-03275-BTM
MIGUEL LOMBERA-VALDOVINOS,
                                              OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
           for the Southern District of California
       Barry T. Moskowitz, District Judge, Presiding

                  Argued and Submitted
            June 8, 2005—Pasadena, California

                 Filed November 30, 2005

      Before: Betty B. Fletcher, Pamela A. Rymer and
            Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Fisher;
                 Dissent by Judge Rymer




                           15517
               UNITED STATES v. LOMBERA-VALDOVINOS                  15519


                              COUNSEL

Timothy A. Scott, San Diego, California, for the defendant-
appellant.

Ileana M. Ciobana, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.


                              OPINION

FISHER, Circuit Judge:

   Defendant-appellant       Miguel       Lombera-Valdovinos
(“defendant”) principally appeals the district court’s denial of
his motion for acquittal after a jury returned a guilty verdict
for attempted illegal reentry.1 We have jurisdiction under 28
U.S.C. § 1291.




  1
    The defendant, who has been deported several times, also appeals the
district court’s admission of evidence of his prior convictions for illegal
reentry. Because we reverse his conviction on other grounds, we do not
reach the defendant’s other claims.
15520        UNITED STATES v. LOMBERA-VALDOVINOS
   We consider the question of whether it is possible to con-
vict a previously deported alien for attempted illegal reentry
into the United States under 8 U.S.C. § 1326 when he crosses
the border with the intent only to be imprisoned. We conclude
that it is not, because attempted illegal reentry is a specific
intent crime that requires proof of intent to enter the country
free from official restraint. The government, operating under
a misconception about the meaning of official restraint, failed
to introduce evidence to support a finding of such intent, so
we must reverse.

                        I. Background

   At trial, Border Patrol agent Guillermo Avila testified to the
following facts. On October 29, 2003, Avila was patrolling
the U.S.-Mexican border. He sat in a marked border patrol
vehicle between the “primary fence,” marking the actual U.S./
Mexican border, and the “secondary fence,” located about 100
feet north of the primary fence. With binoculars, Avila saw
the defendant and four or five others standing on the Mexico
side of the border, about 200 yards away from Avila. Avila
then looked away for about 15 seconds; when he turned back,
he saw the defendant, alone and now on the U.S. side of the
primary fence, walking directly toward him. When the defen-
dant continued to walk toward Avila, Avila drove toward him.
When they met, the defendant stated, “I want to see an immi-
gration judge,” admitted to being a citizen of Mexico and,
when asked if he had any legal basis for being present in the
United States, answered, “No.” He also said that he “wished
to go back to jail.” Avila arrested and searched the defendant.
The defendant has been deported several times on previous
occasions.

                        II. Discussion

   “We review de novo the district court’s denial of a Rule 29
motion for judgment of acquittal. This standard requires us to
‘review the evidence presented against the defendant in the
             UNITED STATES v. LOMBERA-VALDOVINOS           15521
light most favorable to the government to determine whether
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.’ ” United
States v. Ruiz-Lopez, 234 F.3d 445, 447-48 (9th Cir. 2000)
(quoting United States v. Sarkisian, 197 F.3d 966, 984 (9th
Cir. 1999)).

A. Attempted Illegal Reentry

   [1] A previously deported alien who “enters, attempts to
enter, or is at any time found in, the United States” without
the express consent of the Attorney General has violated 8
U.S.C. § 1326(a)(2). However, for the purposes of § 1326,
“enter” has a narrower meaning than its colloquial usage. An
alien has not entered the United States under § 1326 unless he
does so “free from official restraint.” United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir. 2000)
(en banc) (citing United States v. Pacheco-Medina, 212 F.3d
1162, 1166 (9th Cir. 2000)); see also United States v.
Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir. 2001)
(“Since 1908, federal courts have recognized that ‘entering’
the United States requires more than physical presence within
the country. . . . To ‘enter,’ an alien must cross the United
States border free from official restraint.” (citing Pacheco-
Medina, 212 F.3d at 1166)); United States v. Parga-Rosas,
238 F.3d 1209, 1213 (9th Cir. 2001) (discussing the “legal
fiction that entry is not accomplished until a person is free
from official restraint”).

   [2] Attempted illegal reentry requires proof of specific
intent, Gracidas-Ulibarry, 231 F.3d at 1190, more particu-
larly the specific intent “to reenter without consent.” United
States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir.
2002). Because an alien has not “reentered” unless he has
done so free from official restraint, the requirement of specific
intent for this attempt crime means that to be found guilty, a
defendant must have the specific intent to reenter “free from
official restraint.”
15522        UNITED STATES v. LOMBERA-VALDOVINOS
B. Official Restraint

   At trial, the government did not attempt to prove that the
defendant intended to be free of official restraint, but instead
argued that “official restraint” could only be restraint by offi-
cials of the Department of Homeland Security (“DHS”). Thus,
if the defendant had the specific intent to be taken to jail, he
satisfied the statute’s requirement of having the intent to be
free from official restraint. The district court agreed, and
instructed the jury, “An alien enters or reenters the United
States when they [sic] actually cross the border and are free
to go about, that is, go at large or at will within the United
States. If the alien is restrained by the agents or barriers of the
Department of Homeland Security at the border, they [sic] are
not yet free to go about or at large within the United States.”
(emphasis added).

   [3] On appeal, all parties now agree that contrary to the jury
instructions and repeated statements of the court and prosecu-
tion, official restraint — a legal concept that is “interpreted
broadly” in our circuit, Hernandez-Herrera, 273 F.3d at 1219
(citing Ruiz-Lopez, 234 F.3d at 448) — encompasses restraint
by any government official, not just officials of DHS. See,
e.g., United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974)
(holding that official restraint encompasses restraint by cus-
toms officials); cf. United States v. Zavala-Mendez, 411 F.3d
1116, 1120 n. 19 (9th Cir. 2005) (“Many people would rather
be arrested and put in a warm jail than leave the safety of
‘official restraint’ . . . .”). Our circuit precedent clearly holds
that an alien who is on United States soil, but who is “de-
prived of [his] liberty and prevented from going at large
within the United States,” remains under official restraint and
therefore has not entered the country for the purposes of
§ 1326. Hernandez-Herrera, 273 F.3d at 1218 (quoting
Pacheco-Medina, 212 F.3d at 1163-64 (quoting Ex parte
Chow Chok, 161 F. 627, 628-29 (N.D.N.Y. 1908), aff’d 163
F. 1021 (2d Cir. 1908))); see also id. at 1219 (stating that
aliens who “lack[ ] the freedom to go at large and mix with
                UNITED STATES v. LOMBERA-VALDOVINOS                     15523
the population” remain under official restraint) (quoting Ruiz-
Lopez, 234 F.3d at 448) (emphasis added).

   This understanding of the legal status of certain aliens in
our country stretches back many decades. In Kaplan v. Tod,
267 U.S. 228, 229 (1925), an alien thirteen-year-old was
brought to Ellis Island, and then “handed over to the Hebrew
Sheltering and Immigrant Aid Society,” which allowed her to
live with her father. Writing for the Court, Justice Holmes
concluded that “[w]hen her prison bounds were enlarged by
committing her to the custody of the Hebrew Society, the
nature of her stay within the territory was not changed. She
was still in theory of law at the boundary line and had gained
no foothold in the United States.” Id. at 229-30.2

   [4] With this proper understanding of the scope of official
restraint in mind, it is clear that an alien who is under official
restraint from the moment of crossing, and who never
intended to avoid or change that status, cannot therefore have
the necessary intent to be guilty of attempted illegal reentry.
This precisely describes the defendant’s actions and intent
here — as the prosecution itself argued to the jury, but on the
faulty premise that intent to go to jail was intent to be free of
official restraint.
  2
    The dissent proposes a much narrower interpretation of “official
restraint,” based on practical and policy considerations. However, we are
required to apply our circuit’s rule that if an alien is “deprived of [his] lib-
erty and prevented from going at large within the United States,” he is not
free from official restraint. Hernandez-Herrera, 273 F.3d at 1218 (cita-
tions omitted). For the purposes of determining intent, the defendant here
was in much the same situation as the orphan in Kaplan — he sought to
have his “prison bounds . . . enlarged” beyond Agent Avila’s custody to
the custody of some other United States jailer. Kaplan, 267 U.S. at 230.
Surely the dissent does not impute to the defendant a grasp of its theory
of how the doctrine of official restraint operates.
15524          UNITED STATES v. LOMBERA-VALDOVINOS
C. The Evidence Requires Reversal

   [5] Under the correct view of the law, the evidence adduced
at trial was insufficient to support the defendant’s conviction.
The evidence is uncontroverted that agent Avila saw the
defendant before he crossed into United States territory, and
that when the defendant crossed the border, he walked straight
to Avila and told him that he wanted to go to jail. See Ruiz-
Lopez, 234 F.3d at 448 (“[W]e construe restraint broadly to
include constant government surveillance of an alien . . . .”).

   There is no evidence to support the government’s post-hoc
theorizing that the defendant actually intended to sneak into
the country, and changed his plans only when he was spotted
by Avila. These facts are thus distinguishable from those in
Leos-Maldonado, where we concluded that the evidence sup-
ported a finding of specific intent to reenter in part because
of the defendant’s efforts to avoid detection. See 302 F.3d at
1064 (“The evidence shows that [the defendant] scaled the
international border wall, crouching down to avoid detection
after landing on American soil.”). Here, the evidence estab-
lishes that the defendant made no effort to evade official
restraint. Indeed, he sought such restraint. The jury’s verdict
was premised on a faulty understanding of the governing stat-
ute.3

                            III. Conclusion

  [6] Because no rational trier of fact could conclude, on the
evidence presented here, that the defendant was guilty of the
specific intent crime of attempted illegal reentry, we reverse
  3
    As for the dissent’s practical concern that our holding creates a new
loophole for § 1326 violators, this case presents a rare set of factual cir-
cumstances where there is no evidence of anything other than the intent
to be taken into custody. Given these facts and its misapprehension of the
governing law, the government made no effort to dispute that the defen-
dant’s intent was to be taken into custody and to remain in custody.
             UNITED STATES v. LOMBERA-VALDOVINOS           15525
the defendant’s conviction and remand to the district court to
enter a judgment of acquittal. See Ruiz-Lopez, 234 F.3d at
448-49.

  REVERSED and REMANDED.



RYMER, Circuit Judge, dissenting:

   The question here is not whether Lombera-Valdovinos
committed the crime of illegal “reentry” or “being found in”
the United States, which cannot be established unless the alien
was free of “official restraint” between the time of his cross-
ing the border and the time of his arrest. See, e.g., United
States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.
2000) (holding that an alien who is never free from official
restraint does not commit the crime of being found in the
United States). Rather, the question is whether he had the spe-
cific intent, that is, the purpose or conscious desire, to “reen-
ter” the United States. See United States v. Gracidas-
Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (en banc) (holding
that attempted reentry in violation of 8 U.S.C. § 1326 is a spe-
cific intent crime). Lombera-Valdovinos posits that his only
purpose in trying to enter the country was to go to jail. Thus,
in his view, he could not have intended to “reenter” the coun-
try free of official restraint.

   I dissent because Lombera-Valdovinos’s theory — that he
could not have had the specific intent to “enter” the United
States because his only purpose was to go to jail — is based
on a flawed syllogism. It goes like this: An alien who cannot
legally reenter the United States crosses the border and when
spotted at the border by a border patrol agent, tells the agent
that he wants to see an immigration judge to go to jail. An
alien who is stopped at the border, or is continuously under
surveillance from the time he crosses the border until he is
apprehended, is under “official restraint” and thus, is deemed
15526        UNITED STATES v. LOMBERA-VALDOVINOS
not to have “entered” the country. Therefore, an alien who
wants to go to jail lacks the specific intent to “reenter” the
country because his intent is to be restrained by government
authorities.

   The flaw is that “jail” is not the same thing as “official
restraint.” Jail no doubt is a place where one is restrained,
officially. And to want to go to jail is to want to be restrained
officially. But “official restraint” is not just any old restraint,
officially imposed: it is a term of art for border control. The
doctrine of “official restraint” determines whether an alien
who illegally crosses the border and is physically within the
United States is nevertheless deemed not to have made an
“entry.” It flows from the immigration fiction that an alien
who is caught at the border never “enters” the United States
and so is excludable instead of deportable. See, e.g., Shaugh-
nessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953)
(treating excluded alien held at Ellis Island as if stopped at the
border). The “official restraint” doctrine is “premised on the
theory that the alien is in the government’s constructive cus-
tody at the time of physical entry. By contrast, where an alien
is able to exercise his free will subsequent to physical entry,
he is not under official restraint.” United States v. Aguilar,
883 F.2d 662, 683 (9th Cir. 1989); see Pacheco-Medina, 212
F.3d at 1164-65 (summarizing cases).

   Lombera-Valdovinos was arrested within a hundred yards
and a few minutes of crossing the border. He told the border
patrol agent that he wanted to go to jail. This manifests an
intent to be free of “official restraint” at the border, and to be
restrained inside a jail beyond the border. For whatever rea-
son, Lombera-Valdovinos’s avowed purpose for coming to
the United States was to go to jail. This presupposes he would
be part of the United States population, albeit that part of the
population which is incarcerated. Prisons or jail facilities
house persons in this country who are convicted of crime in
this country; they are not an arm of the border-control process
             UNITED STATES v. LOMBERA-VALDOVINOS           15527
that “restrains” aliens before they actually go at large within
the United States.

   Perhaps because he recognizes this is so, Lombera-
Valdovinos argues that, as the Bureau of Prisons and the
Attorney General are government actors, and because the
government is the entity that imposes “official restraint” at the
border, by extension, his wish to be put in jail is a wish to be
kept in “official restraint.” In this context, he argues that the
instructions inaccurately narrowed “official restraint” to the
Department of Homeland Security (DHS). I disagree. The
instructions did state that “[i]f the alien is restrained by the
agents or barriers of the Department of Homeland Security at
the border, they are not yet free to go about or at large within
the United States.” However, the focus on DHS is immaterial,
because there was no dispute that Lombera-Valdovinos was
apprehended by the Border Patrol — that is, by DHS. While
the government agrees that other agencies of the government
could restrain an alien at the border (for example, park police
or the DEA), it is an irrelevant possibility in this case. What
Lombera-Valdovinos wants license to argue is that if an alien
is restrained by DHS at the border and intends to be restrained
by any government agency thereafter, his purpose is always
to be in “official restraint.” This is just another (circular) way
of saying that his purpose of going to jail was the purpose of
being subject to “official restraint” because the Bureau of
Prisons and the Attorney General — who run the prison sys-
tem — are government actors, and government actors are the
ones who subject returning aliens to “official restraint” at the
border. But neither the Bureau of Prisons nor the Attorney
General commits an alien (whether or not under “official
restraint”), or anyone else, to the custody of the Bureau of
Prisons; only a United States District Judge can do that, after
indictment, trial, and conviction.

   Thus, contrary to how the majority sees it, the government
did not fall short of the mark by not attempting “to prove that
the defendant intended to be free of official restraint, but
15528        UNITED STATES v. LOMBERA-VALDOVINOS
instead arguing “that ‘official restraint’ could only be restraint
by officials of the Department of Homeland Security.” Op. at
15522. As DHS was the only agency involved in Lombera-
Valdovinos’s apprehension, it would have been confusing and
misleading to assert or instruct otherwise. There is no basis in
the evidence for supposing that official restraint could be
imposed in this case by any agency except DHS. Nor is there
any basis for concluding, as the majority then does, that “if
the defendant had the specific intent to be taken to jail, he sat-
isfied the statute’s requirement of having the intent to be free
from official restraint.” Id. To want to go to jail inside the
borders of this country is to intend to be free of official
restraint — in this case, DHS — at the border.

   Kaplan v. Tod, 267 U.S. 228 (1925), upon which the major-
ity relies, suggests nothing different. In Kaplan, the alien was
a child who was inadmissible and was ordered to be excluded.
The order could not be carried out because of war. Mean-
while, the child was ordered to be kept at Ellis Island, then
was turned over to the Hebrew Sheltering and Immigrant Aid
Society, which allowed her to live with her father. She had
been stopped at the border and was under the “official
restraint” of the immigration authorities at Ellis Island,
“[w]hen her prison bounds were enlarged by committing her
to the custody of the Hebrew Society.” Id. at 230. As the
Court explained, “[t]heoretically she is in custody at the limit
of the jurisdiction awaiting the order of the authorities.” Id. at
231. The Court’s use of the words “prison bounds” was a fig-
urative description of the child’s continuing constructive cus-
tody until such time as her deportation order could be
executed. By contrast, Lombera-Valdovinos’s articulated pur-
pose was to go to a real jail, not to stay in the constructive
custody of immigration officials at the border or its functional
equivalent.

   As the district court pointed out, Lombera-Valdovinos had
many avenues to achieve this purpose. He could have crossed
the border without being seen, then turned himself in to a law
             UNITED STATES v. LOMBERA-VALDOVINOS           15529
enforcement official or committed a crime that would inevita-
bly have led to incarceration. Instead, he got caught in the act
of trying to enter the United States without permission and,
having achieved what he said he wanted — to go to jail —
now seeks to gut the crime of attempted reentry by a play on
words.

   As the district court also stated: “I think there comes a
point in time that stretching the concept of entry and intent to
enter results in absurd results. And if it’s going to be stretched
to be an absurd result, it won’t be by me.” Me either.

  None of the remaining issues raised on appeal requires
reversal, so I would affirm across the board.
