United States v. Zamudio, No. 13-10322 (9th Cir. 2015)
Annotate this CaseDefendant appealed his conviction of violating 8 U.S.C. 1326, which prohibits a deported alien from being "found in" the United States after reentering without permission. The court held that the district court correctly concluded that defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding where the district court reasoned that both of defendant's convictions (kidnapping in violation of California Penal Code 207(a) in 1994 and methamphetamine possession in 2000) rendered him removeable. Even if the IJ erred in failing to advise defendant of his ability to apply for relief from removal, defendant suffered no prejudice. The court held that defendant's "found in" offense under section 1326 was not complete when he reentered in 2001 because his presentation of an invalid green card as if it were valid did not place authorities on notice that his presence in the United States would be illegal. Therefore, the court rejected defendant's argument concerning a constructive knowledge jury instruction with regard to his statute of limitations theory. Accordingly, the court affirmed the conviction.
Court Description: 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 had 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 a constructive UNITED STATES V. ZAMUDIO 3 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.
The court issued a subsequent related opinion or order on May 7, 2015.
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