USA V. FELIPE AMBRIZ-VALDOVINOS, No. 19-50024 (9th Cir. 2020)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION DEC 9 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 19-50024 D.C. No. 3:18-cr-00019-DMS-1 v. FELIPE AMBRIZ-VALDOVINOS, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted December 7, 2020** San Francisco, California Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges. Felipe Ambriz-Valdovinos appeals his conviction and sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. under 28 U.S.C. § 1291 and affirm. 1. Ambriz-Valdovinos argues that the district court erred in denying his motion to dismiss because the removal order supporting his § 1326 conviction is invalid. He contends that the immigration court lacked jurisdiction over his removal proceedings because the notice to appear (“NTA”) failed to include the time, date, and place of his removal hearing. This argument is foreclosed by binding precedent. See Aguilar Fermin v. Barr, 958 F.3d 887, 889 (9th Cir. 2020) (“[A]n initial NTA need not contain time, date, and place information to vest an immigration court with jurisdiction if such information is provided before the hearing”), cert. denied, No. 20-53, 2020 WL 6385795 (Nov. 2, 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019) (“A notice to appear need not include time and date information to satisfy [the regulatory jurisdictional requirements].”). Ambriz-Valdovinos believes that Karingithi was wrongly decided. But as a three-judge panel we are bound by Karingithi and Aguilar Fermin. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003). Because Ambriz-Valdovinos’s jurisdictional argument fails, we need not decide whether he needed to exhaust it under § 1326(d)(1). 2. Ambriz-Valdovinos argues that there was insufficient evidence to support that he was free from official restraint, a necessary element of his § 1326 2 offense. See United States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005). In Bello-Bahena, we rejected a sufficiency-of-the-evidence challenge involving similar circumstances. Id. at 1088. There, an agent observed the defendant about a mile north of the border, at a time when visibility was presumably poor, and there was no evidence on whether the defendant had been under constant surveillance from the time he entered the United States until the agent first observed him. See id. We held that “[v]iewing the evidence in the light most favorable to the government, . . . a rational jury could have found beyond a reasonable doubt that [the defendant] was free from official restraint for at least some time before his apprehension.” Id. We see no material difference between the facts that supported our decision in Bello-Bahena and the facts here. Thus, viewing the evidence in the light most favorable to the government, there was sufficient evidence supporting that AmbrizValdovinos was “free from official restraint for at least some time before his apprehension.” Id. 3. Ambriz-Valdovinos, relying on Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), argues that § 1326 is unconstitutional because it relies on the definition of “alien,” which impermissibly classifies on the basis of gender. In United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020), we considered and rejected this argument. See id. at 1066 n.10 (rejecting the argument “that, by 3 invalidating the citizenship statute at 8 U.S.C. § 1409(c), MoralesSantana invalidated the entire definition of ‘alienage[,]’” and holding that “[§] 1326 remains intact after Morales-Santana”). Thus, Ambriz-Valdovinos’s argument is foreclosed by Mayea-Pulido. 4. Ambriz-Valdovinos argues that his seventy-eight month sentence violates the Sixth Amendment because the district court considered a prior conviction, which was neither alleged in the information nor proven beyond a reasonable doubt to a jury, to increase the two-year statutory maximum sentence. Although Ambriz-Valdovinos concedes that this argument was rejected in Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998), he contends that United States v. Haymond, 139 S. Ct. 2369 (2019), “comes so close” to overruling Almendarez-Torres. His argument is unpersuasive because the plurality in Haymond recognized that its decision did not implicate Almendarez-Torres. See Haymond, 139 S. Ct. at 2377 n.3 (noting that the plurality decision leaves undisturbed the exception in Almendarez-Torres that “[p]rosecutors need not prove to a jury the fact of a defendant’s prior conviction”). Thus, Almendarez-Torres remains good law, and Ambriz-Valdovinos’s argument fails. AFFIRMED. 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
