43 F.4th 857
8th Cir.2022Background
- Salvador Nunez-Hernandez, a Mexican citizen, was charged under 8 U.S.C. § 1326 for illegal reentry after multiple prior removals.
- He initially pleaded not guilty, later entered a guilty plea, and never raised an equal-protection challenge in the district court.
- After a Nevada district court decision (United States v. Carrillo-Lopez) labeled the statute racially discriminatory, Nunez-Hernandez raised an equal-protection challenge for the first time on appeal.
- The government argued the claim was forfeited for failure to raise it below; the panel applied plain-error review under Rule 52(b).
- The Eighth Circuit concluded the claim was forfeited, a subject-matter-jurisdiction argument was inapplicable, and that prevailing authority did not show a "clear or obvious" error in holding §1326 constitutional.
- The court affirmed the district-court judgment and denied a motion for judicial notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation / Review standard | Equal-protection challenge is jurisdictional and cannot be forfeited | Claim was not raised below and is forfeited; review limited to plain error | Forfeited; plain-error review applies |
| Merits: §1326 equal-protection challenge | §1326 is racially discriminatory and unconstitutional (relying on Carrillo-Lopez) | Precedent and majority authority reject the challenge; no clear or obvious error | Claim fails under plain-error: no clear or obvious legal error; conviction affirmed |
Key Cases Cited
- Zivotofsky v. Clinton, 566 U.S. 189 (explaining appellate review is of issues preserved for review)
- Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (discussing preserved arguments and review)
- Davis v. United States, 140 S. Ct. 1060 (per curiam) (explaining appellate review for forfeited issues is limited)
- Olano v. United States, 507 U.S. 725 (defining forfeiture and Rule 52(b) plain-error review)
- Yakus v. United States, 321 U.S. 414 (quoted regarding forfeiture doctrine)
- Puckett v. United States, 556 U.S. 129 (noting district court could correct forfeited mistakes if raised)
- United States v. Cotton, 535 U.S. 625 (explaining some jurisdictional-type claims are waivable)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (distinguishing subject-matter jurisdiction from waivable defenses)
- Kircher v. Putnam Funds Trust, 547 U.S. 633 (explaining "jurisdictional" labels can be misleading)
- Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (confirming constitutional challenges do not automatically render proceedings non-jurisdictional)
- United States v. Williams, 341 U.S. 58 (holding unconstitutionality of a statute does not automatically oust jurisdiction)
- United States v. Hinkeldey, 626 F.3d 1010 (8th Cir.) (describing the "clear or obvious" standard for plain-error review)