                                                                   [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                       -------------------------------------------U.S. COURT OF APPEALS
                                    No. 07-14916                    ELEVENTH CIRCUIT
                                                                       MARCH 27, 2008
                              Non-Argument Calendar
                      -------------------------------------------- THOMAS K. KAHN
                                                                          CLERK

                      D.C. Docket No. 07-20473-CR-JLK

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellant,

                                        versus

GELCE ALEXANDRE DASILVA,

                                                       Defendant-Appellee.

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                 Appeal from the United States District Court
                       for the Southern District of Florida
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                                 (March 27, 2008)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      The government appeals the district court’s sua sponte dismissal with

prejudice of the indictment charging Defendant-Appellee Gelce Alexandre Dasilva

with attempted reentry into the United States, in violation of 8 U.S.C. § 1326(a).

The district court concluded that the indictment failed to charge acts sufficient to

establish violation of section 1326(a). We cannot agree and vacate the dismissal.

      Section 1326(a) makes it unlawful for an alien who has been removed to

“enter[], attempt[] to enter, or [be] at any time found in, the United States” unless,

prior to reembarkation outside the United States, the alien receives the express

consent of the Attorney General to the alien’s reapplying for admission. To

convict Dasilva of attempted reentry in violation of section 1326(a), the

government had to prove that (1) Dasilva was an alien at the time of the alleged

offense; (2) he had been previously removed; (3) he had not received the express

consent of the Attorney General to apply for readmission; and (4) he attempted to

enter the United States. See United States v. Marte, 356 F.3d 1336, 1345 (11th

Cir. 2004).

      Dasilva (along with over a dozen other aliens) was apprehended in

international waters abroad a disabled United States-flagged vessel on the high

seas approximately some 20 nautical miles off the Florida coast and outside the

jurisdiction of any particular State. Dasilva was charged in a single-count

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indictment with violation of 8 U.S.C. § 1326(a); he chose to plead guilty to the

charge. To establish the factual basis for the plea, the government proffered that

Dasilva was a citizen of Brazil, had been removed previously, and was found on a

vessel bound for the United States. When interviewed, Dasilva admitted that he

was attempting to reenter the United States and had not received the Attorney

General’s consent to apply for reentry. The vessel had not entered United States

territorial waters because it developed a fuel leak that rendered it dead in the

water.

         The district court refused to accept Dasilva’s guilty plea concluding that the

proffer showed the commission of no prosecutable offense. According to the

district court, because the vessel broke down outside the territorial jurisdiction of

this country, Dasilva was accountable only for desiring to live here and that is no

crime. The district court declined to accept Dasilva’s guilty plea; the indictment

was dismissed with prejudice.

         Dismissal of an indictment is subject to de novo review. United States v.

Sharpe, 438 F.3d 11257, 1259 (11th Cir. 2006). The sufficiency of an indictment is

assessed by taking the allegations contained in the indictment to be true and then

determining whether a criminal offense has been stated. See United States v.

Plummer, 221 F.3d 1298, 1302 (11th Cir. 2000). The elements of the section

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1326(a) offense – Dasilva’s alien status, previous removal, absence of consent,

and attempt to reenter – each were alleged in the indictment. Dasilva sought to

plead guilty to the offense. The district court nonetheless concluded that the

attempt stated in the indictment could not support criminal prosecution because no

acts within United States territorial waters were alleged.

      We reject the district court’s position that section 1326(a)’s attempt

provision can have no extraterritorial application. In Plummer, we determined that

the crime of attempted smuggling could be predicated on acts occurring

exclusively outside United States territory; only the underlying offense –

smuggling – requires, as a matter of law, completion within the United States. 221

F.3d at 1303-04. As Plummer recognized, Congress has the authority to enforce

its laws beyond the territorial boundaries of the United States, id. at 1304; and

whether Congress intended extraterritorial application is a matter of statutory

construction. Id. Congress need not provide expressly for extraterritorial

application; such application may be inferred from the nature of the offense. Id. at

1304-05.

      For reasons paralleling those expressed in Plummer for inferring

extraterritorial application of section 545's attempted smuggling provision, we

infer Congressional intent to apply extraterritorially section 1326(a)’s attempted

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reentry provision. Although the completed crime of reentry requires some

physical entry into the United States, attempted reentry is not logically dependent

on acts taken within United States’s territorial limits. See United States v.

Bowman, 43 S.Ct. 39, 41 (1922); Plummer, 221 F.3d at 1305. From the very

nature of the crime, the substantial step toward completion of an illegal reentry –

the lynchpin of an “attempt” – is likely to occur outside United States territorial

limits. Proximity to the United States may factor – and, in some cases may even

be an important consideration – in determining whether conduct constitutes the

requisite substantial step. But proximity is but one consideration; whether conduct

“advanced enough to constitute an attempt is an issue for factual development and

trial, not one for this Court to resolve as a matter of law based solely on the

indictment.” Plummer, 221 F.3d at 1303.

      The indictment of Dasilva stated adequately the offense of attempted illegal

reentry; dismissal of the indictment was in error.

      VACATED AND REMANDED.




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