Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U NITED S TATES OF A MERICA , No. 13-10322 Plaintiff-Appellee D.C. No.
v. 3:12-сr-00532- WHA-1 H ERMILO P ALMERIN Z AMUDIO , AKA Hermilo Zamudio Palmerin,
Defendant-Appellant . OPINION Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted September 9, 2014—San Francisco, California Filed January 14, 2015
Before: J. Clifford Wallace, Mary M. Schroeder, and John B. Owens, Circuit Judges. Opinion by Judge Wallace SUMMARY [*]
Criminal Law
The panel affirmed a conviction for violating 8 U.S.C. § 1326, which prohibits a deported alien from being “found in” the United States after reentering without permission.
The panel held that the district court correctly concluded that the defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding. The panel observed that kidnapping in violation of California Penal Code § 207(a) is categorically a crime of violence for which the defendant was removable based on his 1994 conviction; and that the defendant’s attorney’s admission that his 2000 conviction was for methamphetamine possession and that the defendant was therefore removable satisfied the government’s burden regarding removability. The panel held that even if the immigration judge erred in failing to advise the defendant of his ability to apply for relief from removal, the defendant suffered no prejudice because if he hаd obtained relief from removal for his 1994 conviction under 8 U.S.C. § 1182(c), that would have rendered him ineligible for relief from removal for his 2000 conviction under 8 U.S.C. § 1229b(c)(6). The panel rejected the defendant’s contention that his attorney’s admission regarding the 2000 conviction was the result of ineffective assistance of counsel.
Rejecting the defendant’s contention that the district court erred in failing to instruct the jury on а constructive [*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. knowledge theory for the defendant’s statute of limitations defense, the panel held that the defendant’s “found in” offense under § 1326 was not complete – and therefore the statute of limitations did not begin to run – when the defendant reentered in 2001 because his presentation of an invalid green card as if it were valid did not place authorities on notice that the defendant’s presence in the United States would be illegal.
COUNSEL
Erick L. Guzman (argued), Law Office of Erick L. Guzman, Santa Rosa, California, for Defendant-Appellant. Susan B. Gray, Assistant United States Attorney (argued), Melinda Haag, United States Attorney, Barbara J. Valliere, *3 Chief, Appellate Division, San Francisco, California, for Plaintiff-Appellee.
OPINION
WALLACE, Senior Circuit Judge:
Zamudio was convicted of violating 8 U.S.C. § 1326, which prohibits a deported alien from being “found in” the United States after reentering without permission. Zamudio now appeals from his conviction, arguing that the underlying removal proceeding violated his due process rights, that the district court erred in failing to instruct the jury on a constructive knowledge theory for Zamudio’s statute of limitations defense, and that the evidence presented to the jury proved his statute of limitations defense as a matter of law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
Zamudio was born in Mexico and came to the United States as a teenager. He subsequently became a legal permanent resident by virtue of his marriage to a United States citizen. In 1994 Zamudio pleaded guilty to kidnapрing in violation of California Penal Code § 207(a) and was sentenced to three years in prison. In 1999 Zamudio was arrested and charged with felony possession of methamphetamine pursuant to California Health and Safety Code § 11377(a) and with misdemeanor possession of marijuana pursuant to § 11357(b). The marijuana charge was dismissed and Zamudio pleaded guilty to the remaining charge in 2000. Zamudio was sentenced to serve 100 days in jail.
Upon completion of his sentence, Zamudio was taken into custody by the United States Immigration and Naturalization Service (INS). The INS served Zamudio with a Notice to Appear (NTA) which charged that he was removable both because his 1994 conviction for kidnapping was an aggravated felony and because his 2000 conviction for possession of methamphetamine was a violation relating to a controlled substance.
Attorney Donald Smith was retained to represent Zamudio. Smith filed a motion for change of venue, in which *4 he requested permission to appear by telephone. The motion was denied, and another immigration judge (IJ) later held a removal hearing. Zamudio was present, along with a Spanish interpreter, but Smith was not. The IJ contacted Smith by telephоne and proceeded with the hearing.
The IJ asked Smith if he was ready to proceed with the case, and Smith said he had not seen the NTA, but that if the IJ would read it to him he could respond on behalf of his client. Smith admitted that Zamudio had no claim to U.S. citizenship and that Zamudio was convicted of methamphetamine possession in 2000 and of kidnapping in 1994; he then conceded that Zamudio was deportablе based on each of his convictions. Both the IJ and Smith agreed that there was no relief from deportation available to Zamudio. The IJ then ordered Zamudio removed to Mexico.
Zamudio’s second and then-current wife later testified before the district court that she traveled to Mexico several months after Zamudio’s removal to bring Zamudio back to the United States. She met Zamudio in Tijuanа and brought him his legal permanent resident card, or green card, which was no longer valid following his removal. On Memorial Day weekend in 2001 she drove Zamudio to a United States port of entry where the border agent requested documentation for everyone entering. She provided her driver’s license, her birth certificate, and Zamudio’s invalid green card. The agent looked at the green card, loоked at Zamudio, and returned the documents. Then, after asking whether there was anyone else in the vehicle and checking the vehicle’s trunk, the agent waved them forward through the port of entry.
In 2012 Zamudio came to the attention of immigration officials in the United States, this time while he was incarcerated at the Sonoma County Jail. He was subsequently indicted for the instant offense.
6 U NITED S TATES V . Z AMUDIO Zamudio moved to dismiss the indictment, arguing that the IJ’s failure to advise Zamudio that he was eligible to apply for relief from removal rendered his removal order invalid and precluded the government from relying on it as a predicate element for the prosecution. Zamudio also argued, among other things, that he received ineffective assistance of counsel because Smith erred in conceding that Zamudio’s drug conviction was for methamphetamine and Smith never came to visit Zamudio and never explained what was happening.
The district court denied Zamudio’s motion to dismiss, concluding that Zamudio could not have successfully contested removability based on either his 1994 conviction for kidnapping or his 2000 conviction for drug possession. The court reasoned that the 1994 kidnapping conviction rendered Zamudio removable because kidnapping was considered a crime of violence at the time of Zamudio’s removal hearing, and the 2000 conviction was also a removable offense because Zamudio’s counsel had admitted at the removal hearing that the conviction was for possession of methamphetamine. The district court further concluded that any failure to advise Zamudio of his eligibility for relief from removal was not prejudicial because if Zamudio had been granted relief from removal for his 1994 conviction, he would then have been ineligible for relief from removal for his 2000 conviction.
After a two-day trial, the jury was unable to reach a verdict. On re-trial, Zamudio pursued a statute of limitations defense, arguing that the five-year statute of limitations for 8 U.S.C. § 1326 began to run in 2001 when his identificatiоn was presented to a border agent while passing through a port of entry into the United States, and therefore the charge against him was already time-barred when he was indicted in 2012. Over the government’s objection, the district court allowed testimony supporting this defense from Zamudio’s second wife regarding their crossing the border into the United States during the 2001 Memorial Day weekend. However, the district court ultimately denied Zamudio’s renewed motion to acquit at the close of evidence based on his statute of limitations defense, and instead, over Zamudio’s *6 objections, instructed the jury with regard to the issue of Zamudio’s reentry and the government’s alleged knowledge that he was present in the United States illegally as follows:
When a deportee gains readmission to the United States by presenting an invalid travel dоcument to border authorities, there is not notice to the federal authorities that his presence in the United States is illegal. In such a circumstance, the statute of limitations does not begin to run until the deportee is subsequently found in the United States by federal immigration authorities.
The jury found Zamudio guilty and he was sentenced to 37 months in prison.
Zamudio argues on appeal that the district court erred in (1) denying his motion to dismiss the indictment because the underlying deportation proceeding was fundamentally unfair, (2) omitting a jury instruction on constructive knowledge with regard to his statute of limitations defense, and (3) denying his motion for acquittal at the close of evidence based on his statute of limitations defense.
II.
(1)
We review de novo a district court’s denial of a motion to
dismiss an indictment, including one charging illegal reentry
follоwing deportation based on an alleged due process
violation in the underlying deportation proceeding.
United
States v. Gonzalez-Villalobos
,
For the reasons stated in the district court’s order denying
Zamudio’s motion to dismiss, we hold that the district court
correctly concluded that Zamudio failed to meet his burden
in collaterally attacking his underlying deportation
proceeding. The district court correctly reasoned that both of
Zamudio’s convictions rendered him removable. Kidnapping
in violation of California Penal Code § 207(a) is categorically
a crime of violence for which Zamudio was removable based
on his 1994 conviction.
Delgado-Hernandez v. Holder
,
Zamudio’s argument that he should not be bound by
Smith’s admission because it was the result of ineffective
assistance of counsel is unavailing. The standard for
establishing ineffective assistance of counsel under the Fifth
Amendment in immigration cases is higher than the Sixth
Amendment standard set forth in
Strickland v. Washington
,
466 U.S. 668 (1984), so if Zamudio fails to meet the
Strickland
standard, he cannot meet the higher Fifth
[1]
We grant Zamudio’s motion for leave to file an oversized citation of
supplemental authorities. Zamudio’s citation to
Medina-Lara v. Holder
10
U NITED S TATES V . Z AMUDIO
Amendment standard either.
Torres-Chavez v. Holder
Even under
Strickland
, Zamudio’s counsel did not
perform below an “objective standard of reasonableness” in
failing to make legal arguments that were not yet established
at the time of Zamudio’s removal proceeding. 466 U.S. at
688.
Strickland
does not require attorneys to make arguments
based on cases that have nоt yet been decided.
See Clark v.
Arnold
, 769 F.3d 711, 727 (9th Cir. 2014) (“[W]e do not
expect counsel to be prescient about the direction the law will
take”) (citation and quotation marks omitted). The law in
existence at the time of Zamudio’s deportation hearing gave
Zamudio no hope of avoiding deportation. As a result, even
if Zamudio were correct that the charging and sentencing
documents for his 2000 conviction were insufficient to show
that he had been convicted of possessing a federally
prohibited drug under
United States v. Vidal
,
Zamudio has also failed to demonstrate prejudice. As the district court stated, Zamudio “does not now contend that the statements of his attorney, made on his behalf, were factually incorrect, and does not provide any facts that would contradict the admissions.” At no point has Zаmudio cited *9 “any authority for the proposition that voluntarily conceding a true fact can fundamentally undermine the fairness of a proceeding, nor are we aware of any.” Torres-Chavez , 567 F.3d at 1102. Under these circumstances, we will not hold that Zamudio was prejudiced by his counsel’s challenged actions.
(2)
Zamudio also disputes the district court’s decision not to provide a constructive knowledge jury instructiоn with regard to his statute of limitations theory. A district court’s jury instructions are reviewed de novo as to their accuracy and for abuse of discretion as to their formulation. United States v. Stinson , 647 F.3d 1196, 1215 (9th Cir. 2011). However, because we hold as a matter of law that the statute of limitations could not have run prior to the indictment on the facts of this case, the specific standard of review does not change our analysis.
Although we hаve clarified that the statute of limitations
for “[t]he offense of being found in the United States [begins
to run] when an alien is discovered and identified by the
immigration authorities,”
United States v. Hernandez
Other circuits have adopted a similar rule on the theory
that the statute of limitations is not designed to reward
deception. For example, in
United States v. Acevedo
, the
Second Circuit addressed the question whether a deported
alien who reentered the United States using his real name and
some
valid documents, but who presented an invalid green
*10
card, could argue that the statute of limitations began to run
when he presented such documentation to authorities upon
reentry.
In this case, according to Zamudio’s own witness, his 2001 entry involved the presentation of an invalid green card as if it had been a valid travel document. Zamudio’s argument that the presentation of his green card gave immigration authorities knowledge of his illegal presence in the United States thus directly contradicts the only possible purpose for presenting the green card in that context: to convince immigration authorities that he was entering the United States legally.
We hold that Zamudio’s “found in” offense under section
1326 was nоt complete—and therefore the statute of
limitations did not begin to run—when Zamudio reentered in
2001 because his presentation of an invalid green card as if it
were valid did not place authorities on notice that Zamudio’s
presence in the United States would be illegal. Zamudio’s
successful use of “specious documentation that conceal[ed]
the illegality of his presence” in crossing back into the United
States should not empower him subsequently to avoid
prosecution on the theory that the government should have
known he was entering the United States illegally.
Acevedo
*11
Zamudio’s citation to United States v. Gomez , 38 F.3d 1031 (8th Cir. 1994), does not help him. In Gomez , the defendant voluntarily filed immigration papers with INS officials; those papers “provided virtually no truthful biographical data,” but did contain a set of valid fingerprints. Id. at 1033, 1037. Because those fingerprints provided a means by which the INS could have determined, in the exercise of diligence, Gomеz’s status as a deported alien, the court held that the “found in” violation accrued—for purposes of commencing the statute of limitations—at the earliest point at which a normal fingerprint processing request would have revealed Gomez’s illegal status. Id. at 1037–38. Even if we were to accept this out of circuit case, which we need not, it would not change our position. In Gomez , the alien provided INS with both the information and the means to discover his immigration status. In this case, by contrast, Zamudio’s presentation of his invalid green card at the border did not provide the authorities with either the information or the means with which to discover his immigration status. Because Zamudio’s presentation of his invalid green card did not enable the government to ascertain that his entry was illegal, even in the exercise of diligence, knowledge of Zamudio’s status cannot be imputed to the government, regardless of whether a constructive knowledge theory applies.
(3)
Zamudio also argues that the district court erred by failing to grant his motion for acquittal because no reasonable jury could have found that Zamudio failed to meet his burden of proving his statute of limitations defense, given the evidence. Our conclusions above with regard to Zamudio’s statute of limitations defense foreclose this argument.
AFFIRMED.