In United States v. Cabrera, --- F.4th ---, No. 21-50259 (9th Cir. 2023), the Court affirmed Cabrera’s 2021 convictions and sentence for attempted illegal entry and attempted illegal reentry under 8 U.S.C. §§ 1325 and 1326.
First, the Court held that the district court did not err in denying Cabrera’s motion to suppress a statement he made to a Border Patrol agent about coming to the United States to find work. The Court explained that, on the facts before it, the questioning was permissible pursuant to Terry.
Second, the Court held the district court did not abuse its discretion in excluding lay witness testimony about the “factual situation in Tijuana in November 2019”—specifically, the “enormous backlog of Central American migrants seeking asylum” due to the “metering” and “Remain in Mexico” policies in place at the time.
Third, the Court determined the district court did not abuse its discretion in formulating jury instructions on the requisite intent for a § 1326 conviction. This issue had to do with the intent to enter and go about free from official restraint.
Finally, the Court concluded that the district court did not err in calculating Cabrera’s criminal history score. This issue had to do with how to calculate prior time-served sentences for purposes of criminal history.
