United States v. 2020-10-06 | 19-10014 | USA V. LEVIAN PACHECO PACHECO | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

LEVIAN DELA CAR PACHECO
PACHECO, AKA Levian D. Pacheco,
Defendant-Appellant.
No. 19-10014

D.C. No.
2:17-cr-1152-
PHX-SPL

OPINION

On Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding

Argued and Submitted August 12, 2020
San Francisco, California

Filed October 6, 2020

Before: Susan P. Graber and Daniel A. Bress, Circuit
Judges, and Robert T. Dawson,
*
District Judge.

Opinion by Judge Dawson

*
The Honorable Robert T. Dawson, United States District Judge for
the Western District of Arkansas, sitting by designation.

2 UNITED STATES V. PACHECO

SUMMARY
**

Criminal Law

The panel affirmed convictions for sexually abusing
minors at a facility that housed unaccompanied noncitizen
children.

To establish federal jurisdiction under the statutes of
conviction, 18 U.S.C. §§ 2243(b) and 2244(a)(4), the
victims must be in “official detention”—a term that extends
to detentions “pending . . . deportation.” 18 U.S.C.
§ 2246(5)(A). The panel held that, under § 2246(5)(A), the
phrase “pending ... deportation” does not require a finding
of actual or inevitable removal from the United States.
Instead, it is sufficient that, as here, the government had
initiated removal proceedings against the minors, even
though those proceedings were unresolved and the minors
therefore did not face a certainty of deportation. Because the
government presented testimony establishing that the minors
in this case had been served with Notices to Appear in
Immigration Court and were placed into removal
proceedings that created the possibility of deportation, the
panel concluded that the statute’s jurisdictional element was
met.

The panel addressed additional issues in an unpublished
memorandum disposition.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. PACHECO 3

COUNSEL

Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.

Peter S. Kozinets (argued), Assistant United States Attorney;
Krissa M. Lanham, Appellate Chief; Michael Bailey, United
States Attorney; United States Attorney’s Office, Phoenix,
Arizona; for Plaintiff-Appellee.

OPINION
DAWSON, District Judge:
Levian Pacheco Pacheco appeals his convictions for
sexually abusing minors at a facility that housed
unaccompanied noncitizen children. After an eight-day jury
trial, Pacheco was convicted of seven counts of abusive
sexual contact with a ward, two counts of sexual abuse of a
ward, and one count of attempted sexual abuse of a ward.
See 18 U.S.C. §§ 2243(b), 2244(a)(4).
To establish federal jurisdiction under the statutes of
conviction, the victims must be in “official detention”—a
term that extends to detentions “pending . . . deportation.”
18 U.S.C. § 2246(5)(A). Pacheco contends that his
convictions should be vacated because the government
presented insufficient evidence to demonstrate that the
minors were in official detention. In Pacheco’s view, a
person is “pending deportation” only if he is awaiting actual
removal from the United States following a final order of
removal.

4 UNITED STATES V. PACHECO

We hold that, under 18 U.S.C. § 2246(5)(A), the phrase
“pending . . . deportation” does not require a finding of
actual or inevitable removal from the United States. Instead,
it is sufficient that, as here, the government had initiated
removal proceedings against the minors, even though those
proceedings were unresolved and the minors therefore did
not face a certainty of deportation. Because the government
presented testimony establishing that the minors in this case
had been served with Notices to Appear in Immigration
Court and were placed into removal proceedings that created
the possibility of deportation, the statute’s jurisdictional
element was met.
1

I.
The minors were approximately fifteen to seventeen
years old when they immigrated illegally to the United
States. After the minors were taken into federal custody, the
government placed them at Casa Kokopelli, a shelter that
housed unaccompanied noncitizen children pursuant to a
federal contract. From May 2016 to July 24, 2017, Levian
Pacheco Pacheco was employed as a youth care worker at
Casa Kokopelli. Pacheco’s duties consisted of escorting the
minors throughout the facility, monitoring the hallways, and
conducting headcounts.
At Pacheco’s trial, the minors testified that Pacheco had
grabbed their genitalia through over-the-clothes touching.
Two minors testified that Pacheco performed fellatio on
them. One of the minors testified that Pacheco propositioned

1
Pacheco raises additional evidentiary and sentencing challenges.
We address these issues in a separate unpublished memorandum
disposition, in which we affirm Pacheco’s convictions.

UNITED STATES V. PACHECO 5

him for anal sex, immediately after Pacheco unclothed
himself and the minor and grabbed the minor’s genitalia.
The government presented testimony from Jallyn
Sualog, the deputy director for children’s programs at the
Office of Refugee Resettlement (ORR).
2
When the minors
were housed at Casa Kokopelli, each minor had been served
with a Notice to Appear in Immigration Court and their
removal cases were in the process of being adjudicated. That
was so even though, later, the minors were placed with
sponsors in the United States and were not ultimately
deported.
At the close of the government’s case-in-chief, Pacheco
moved for a Rule 29 judgment of acquittal on all counts. The
court granted the motion on one count and denied the motion
for the other counts. Pacheco renewed the motion after the
defense rested; the court denied the renewed motion as well.
On appeal, Pacheco contends the district court erred in
denying the motion because the minors were not “pending
. . . deportation” within the meaning of the statute. See
18 U.S.C. §§ 2243(b)(1), 2244(a)(4) (incorporating
§ 2243(b) by reference); 2246(5)(A) (defining “official
detention” to include detention “pending . . . deportation”).
II.
A.
This case presents a question of statutory interpretation,
which we review de novo. United States v. Ventre, 338 F.3d

2
ORR is a program within the United States Department of Health
and Human Services.

6 UNITED STATES V. PACHECO

1047, 1052 (9th Cir. 2003). The statutory definition of
“official detention” is:
detention by a Federal officer or employee, or
under the direction of a Federal officer or
employee, following arrest for an offense;
following surrender in lieu of arrest for an
offense; following a charge or conviction of
an offense, or an allegation or finding of
juvenile delinquency; following commitment
as a material witness; following civil
commitment in lieu of criminal proceedings
or pending resumption of criminal
proceedings that are being held in abeyance,
or pending extradition, deportation, or
exclusion[.]
Id. § 2246(5)(A) (emphasis added).
Pacheco argues for a limited construction of the phrase
“pending . . . deportation.” He contends that the natural
reading of the phrase applies exclusively to persons awaiting
actual, physical removal from the United States, as opposed
to potential removal. The statute does not define “pending
. . . deportation” and, thus, “we interpret that phrase using
the normal tools of statutory interpretation.” Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562, 1569 (2017).
We begin our analysis with the text of the statute and
with the presumption that Congress intended that the words
used be given their plain and ordinary meaning. United
States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999). The
plain meaning of the text controls unless it is ambiguous or
leads to an absurd result. See Coeur d’Alene Tribe of Idaho
v. Hammond, 384 F.3d 674, 692–94 (9th Cir. 2004); SEC v.
McCarthy, 322 F.3d 650, 655 (9th Cir. 2003). To determine

UNITED STATES V. PACHECO 7

the ordinary meaning of an undefined term, we may refer to
dictionary definitions. See United States v. Santos, 553 U.S.
507, 511 (2008) (utilizing dictionary definitions).
The question here is what constitutes “pending” as that
term is used in 18 U.S.C. § 2246(5)(A). We turn first to the
dictionary definition. Some dictionaries define “pending” as
not requiring an event to occur or be completed. “Pending”
means “through the period of continuance . . . of” or “until
the . . . completion of” when used as an adverb, and it means
“in continuance” or “not yet decided” when used as an
adjective. Carey v. Saffold, 536 U.S. 214, 219–20 (2002)
(quoting Webster’s Third New International Dictionary
1669 (1993)); see also, e.g., Black’s Law Dictionary, Bryan
A. Garner, Editor-in-Chief (11th ed. 2019) (defining
“pending” as “1. Throughout the continuance of; during . . .
2. While awaiting; until,” (prep.), and as “1. Remaining
undecided; awaiting decision” (adj.)). These definitions
show that pending is commonly used to indicate an ongoing
process with an awaited or expected decision in the future.
Of course, as the Supreme Court has repeatedly
cautioned in the context of statutory interpretation, whether
a term is ambiguous “does not turn solely on dictionary
definitions of its component words.” Yates v. United States,
574 U.S. 528, 537 (2015) (plurality opinion). Rather, “[t]he
plainness or ambiguity of statutory language is determined
by reference to the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997). When analyzing a statute, we must “look to the
provisions of the whole law” to determine the provision’s
meaning. Star Athletica, L.L.C. v. Varsity Brands, Inc.,
137 S. Ct. 1002, 1010 (2017) (quoting United States v. Heirs
of Boisdoré, 49 U.S. (8 How.) 113, 122 (1849)).

8 UNITED STATES V. PACHECO

In the present case, the statutory context reveals that
“official detention” is not limited merely to those who
remain in custody after their immigration case is fully
adjudicated and who are merely awaiting an inevitable
removal. See Parker Drilling Mgmt. Servs., Ltd. v. Newton,
139 S. Ct. 1881, 1888 (2019) (holding that “the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme”). The definition of
“official detention” includes individuals who are being held
in federal custody while their case is being adjudicated,
including detention “following arrest for an offense,”
“following a charge . . . of an offense,” “following . . . an
allegation . . . of juvenile delinquency,” and “following civil
commitment . . . pending resumption of criminal
proceedings that are being held in abeyance.” 18 U.S.C.
§ 2246(5)(A). Thus, the statutory context does not provide
support for adopting a more narrow definition of “pending
deportation.”
Although we cannot find a federal case authoritatively
defining “pending” in the context of 18 U.S.C. § 2246(5)(A),
we note that the meaning of “pending” has been considered
in other statutory contexts when the term is not defined. This
too supports our interpretation. In Carey, the Supreme Court
defined “pending” as “in continuance” or “not yet decided”
when determining whether an application for habeas relief
was timely. 536 U.S. at 219. Applying those definitions, the
Court concluded that a habeas application was pending until
it had “achieved final resolution.” Id. at 220. Outside the
habeas context, we have ruled that an action is pending so
long as the parties’ case has not reached its final resolution.
For example, in Beverly Community Hospital Ass’n v.
Belshe, 132 F.3d 1259, 1264–65 (9th Cir. 1997), we held that
a statutory reference to “pending” lawsuits encompassed not
only undecided cases at the district court level, but also cases

UNITED STATES V. PACHECO 9

in the process of appeal. Both Carey and Beverly defined
“pending” based on whether there was an active adjudication
of the relevant dispute.
With this guidance, we conclude that deportation is
“pending” for the purposes of 18 U.S.C. § 2246(5)(A) when
the victims of the defendant’s conduct are in unresolved
deportation or removal proceedings. We interpret “pending”
by giving the term its ordinary meaning. See Star Athletica,
L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017)
(“We thus begin and end our inquiry with the text, giving
each word its ordinary, contemporary, common meaning.”
(internal quotations omitted)). Thus, where, as here, the
government had issued Notices to Appear in Immigration
Court, Pacheco’s victims were pending deportation until the
completion of that process, whether it resulted in deportation
or not. In other words, the case has not “achieved final
resolution,” Carey, 536 U.S. at 220, and the victims are
“pending . . . deportation” insofar as the proceedings could
result in their removal from the United States.
Our construction is consistent with common usage of the
word “pending.” For example, we often refer to nominations
that are “pending Senate confirmation” even though there is
no guarantee that a nominee will ultimately be confirmed. A
nomination is “pending” before the Senate as soon as the
process begins, even if the Senate adjourns without acting or
rejects the nominee.
Pacheco’s reliance on Zavala v. Ives, 785 F.3d 367 (9th
Cir. 2015), does not change our analysis. There, we
interpreted “official detention” within a credit sentencing
statute to mean that a noncitizen was entitled to credit toward
his sentence when the U.S. Immigration and Customs
Enforcement Service (“ICE”) detained him pending
potential criminal prosecution, rather than pending

10 UNITED STATES V. PACHECO

deportation in the sense of being removed from the country.
Id. at 370–73. Unlike in Zavala, the victims here were in
custody pending their civil deportation hearings; they were
not detained for purposes of criminal prosecution.
Moreover, we reject the argument that if Congress meant to
refer to “official detention” as “pending . . . deportation ...
proceedings,” it was required to use that exact language.
Pacheco opines that omission of the word “proceedings”
implies that a final order of removal is necessary to be
“pending . . . deportation.” But the provisions that Pacheco
cites as support for this argument, 18 U.S.C. § 3142(d)(2)
and 8 U.S.C. § 1231(a)(3), are unrelated to the statutes at
issue in this case. Accordingly, Pacheco’s argument on this
point is not persuasive.
B.
The evolution of the statute over time affirms Congress’
intent to broadly protect federal detainees from sexual abuse.
The statutes of conviction were originally enacted as part of
the Sexual Abuse Act of 1986, criminalizing aggravated
sexual abuse, sexual abuse, and abusive sexual contact by
any person “in the maritime and territorial jurisdiction of the
United States or in a Federal prison.” United States v.
Mujahid, 799 F.3d 1228, 1232–33 (9th Cir. 2015) (quoting
Sexual Abuse Act of 1986, Pub. L. No. 99-654, 100 Stat.
3660 (codified as amended at 18 U.S.C. §§ 2241–2244)). In
2006, Congress expanded the jurisdictional reach of the
statutes to include offenses “in any prison, institution, or
facility in which persons are held in custody by direction of
or pursuant to a contract or agreement with the Attorney
General.” Id. at 1233 (quoting Violence Against Women
and Department of Justice Reauthorization Act of 2005, Pub.
L. No. 109-162, § 1177(a), 119 Stat. 2960, 3125 (2006)
(codified as amended at 18 U.S.C. §§ 2241–2244)). In 2007,

UNITED STATES V. PACHECO 11

Congress further extended the jurisdictional reach to
encompass “any prison, institution, or facility in which
persons are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal
department or agency . . . .” See 18 U.S.C. §§ 2241–2244;
Pub. L. 110-161, 121 Stat. 1844 (Dec. 26, 2007). That
Congress has continually expanded the coverage of the
statute also militates against Pacheco’s request that we
construe the statute narrowly.
III.
Pacheco also contends that the district court erred in
denying his Rule 29 motion because the evidence was
insufficient to show that the minors were pending
deportation. In determining whether evidence was
insufficient to sustain a conviction, we consider whether,
“after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)).
When viewing the evidence in the light most favorable
to the prosecution, a rational trier of fact could have found
the children in Pacheco’s case were pending deportation.
Pacheco argues that the children were ultimately united with
sponsors in the United States, rather than deported.
Nevertheless, the government presented testimony
demonstrating that either ICE or Border Patrol had initiated
removal proceedings against each of the minor victims.
Those proceedings were ongoing when Pacheco’s conduct
occurred. Applying our construction of § 2246(5)(A), we
hold that any rational juror could have reached the
conclusion that the minors were “pending . . . deportation.”

12 UNITED STATES V. PACHECO

Accordingly, the district court did not err in denying
Pacheco’s Rule 29 motion.
* * *
For the foregoing reasons and those set forth in our
accompanying memorandum disposition, we affirm
Pacheco’s convictions on all counts.
AFFIRMED.