Argued and Submitted, Pasadena, California April 7,
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:08-cr-00840-DMS-2. Dana M. Sabraw, District Judge, Presiding.
Devin Burstein (argued), Warren & Burstein, San Diego, California, for Defendant-Appellant.
Ryan A. Sausedo (argued) and Bruce R. Castetter, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Sidney R.
Thomas, Milan D. Smith, Jr., and Morgan Christen, Circuit Judges.
Milan D. Smith, Circuit Judge
In this appeal, we consider whether Jorge Humberto Thum encouraged or induced an illegal alien to reside in the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), or aided and abetted the commission of this crime, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II), merely by escorting that alien from a fast food restaurant near the border to a nearby vehicle. We conclude that he did not. Accordingly, we vacate the district court's judgment revoking Thum's supervised release, and we remand with instructions to dismiss the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Thum is a United States citizen with a history of convictions for smuggling illegal aliens. In 2008, the district court sentenced Thum to 33 months of incarceration and two years of supervised release after he pleaded guilty to transporting an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and aiding and abetting, in violation of § 1324(a)(1)(A)(v)(II). On September 30, 2011, the district court imposed an additional two-year term of supervised release after Thum admitted to failing to maintain contact with his probation officer.
On November 19, 2012, federal agents arrested Thum near the San Ysidro Port of Entry in Southern California. On November 30, 2012, a probation officer in the Southern District of California filed a petition alleging that Thum violated 8 U.S.C. § 1324(a)(1)(A)(iv), and therefore violated the terms of his supervised release by
committing another federal crime. Thum denied the allegation, and the district court held an evidentiary hearing on April 10, 2013.
At the evidentiary hearing, Special Agent Prescilla Gonzalez of the Department of Homeland Security testified that, on November 19, 2012, federal agents followed a man named Aldo Varguez-Rodriguez from the San Ysidro Port of Entry to a Jack in the Box fast food restaurant near the border. The agents decided to follow Varguez-Rodriguez because they suspected that he had presented a false identification card ...