United States of America v. Wardy Alfonso Liberato

Pima, Arizona criminal defense lawyer represented the Defendant charged with entering and being

found in the United States after having been removed, and remanded for entry of a judgment of acquittal.



Wardy Alfonso Liberato, a Dominican removed from the United States in 2007, was part of a group of suspected

noncitizens arrested next to the U.S.-Mexico border fence in January 2023. A jury convicted him of "enter[ing]” and

being "found in the United States of America after having been . . . removed therefrom” in violation of 8 U.S.C.

§ 1326(a). Presence in the United States does not violate Section 1326(a) "until physical presence is accompanied by

freedom from official restraint.” United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir. 2000) (quoting

United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974)).

The jury returned a guilty verdict. The district court denied Liberato’s motion for judgment of acquittal and entered a judgment of conviction. Liberato timely appealed.



We conclude that the evidence presented was insufficient to prove beyond a reasonable doubt that Liberato was at some point free from official restraint. We therefore REVERSE Liberato’s conviction and REMAND for entry of a judgment of acquittal. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc).