United States v. Elizardo Luna-Magdaleno
533 F. App'x 792
9th Cir.2013Background
- Luna-Magdaleno appeals his conviction and sentence for attempted entry after deportation under 8 U.S.C. § 1326.
- The government relied on three removal orders; the district court denied a motion to dismiss the indictment challenging their validity.
- The court held the 2005 removal order valid and that only one valid removal order is needed to sustain the conviction.
- Luna-Magdaleno admitted removability based on a false claim of U.S. citizenship but argued the removal order was unfair due to lack of advised relief options.
- He acknowledged ineligibility for certain relief (voluntary departure, cancellation) and for nunc pro tunc cancellation due to prior aggravated felonies.
- On sentencing, the court applied an enhancement under 8 U.S.C. § 1326(b) based on a prior conviction, and the Ninth Circuit affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of removal orders | Luna-Magdaleno contends all removal orders were flawed and questioned the indictment’s basis. | Luna-Magdaleno asserts the immigration judge failed to advise on relief options, rendering the orders unfair. | 2005 removal order valid; conviction sustained. |
| Properly applying the prior-removed enhancement | The district court misapplied the enhancement by treating the prior removal after an aggravated felony as a basis for a higher offense level. | The district court properly treated the prior removal under applicable precedent and Rivera's modified analysis. | The enhancement properly applied; Rivera framework controls. |
| Descamps and divisibility concerns | Descamps overruled or limited the Rivera approach to divisible statutes? | Descamps does not alter Rivera’s applicability to this divisible statute. | Descamps does not affect Rivera here; Rivera remains valid. |
| § 1326(b) vs § 1326(a) sentencing authority | Subsequent caselaw may overrule Almendarez-Torres’s framework for § 1326(b) enhancements. | § 1326(b) is a penalty provision, and prior convictions may enhance under existing precedent. | Almendarez-Torres framework remains; enhancement affirmed. |
Key Cases Cited
- United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011) (modified categorical analysis for divisible statutes)
- United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002) (loss of relief considerations in removal proceedings)
- Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011) (prejudice considerations for withdrawal of admission)
- Descamps v. United States, 133 S. Ct. 2276 (Supreme Court 2013) (divisible statutes and categorical approach)
- Almendarez-Torres v. United States, 523 U.S. 224 (U.S. 1998) (prior-conviction exception for sentencing enhancements)
- United States v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011) (reaffirmation of Almendarez-Torres framework post-Descamps)
- United States v. Valdovinos-Mendez, 641 F.3d 1031 (9th Cir. 2011) (upholding prior-conviction enhancement)