United States v. Peralta-Sanchez, No. 14-50393 (9th Cir. 2017)
Annotate this CaseDefendant was convicted of illegal entry in violation of 8 U.S.C. 1325 and illegal reentry in violation of 8 U.S.C. 1326, predicated on his expedited removal in 2012. The court concluded that defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government’s failure to inform him of the possibility of withdrawal relief. Because defendant's 2012 removal was not fundamentally unfair, the court affirmed the section 1326 conviction and sentence for illegal reentry. Because the revocation of defendant's revocation of his supervised release was premised on the section 1326 conviction, the court also affirmed the district court's revocation.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for illegal entry, and the revocation of supervised release, in a case in which the defendant argued that his expedited removal was fundamentally unfair, and cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission. The panel held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4). As a result, the panel concluded that the defendant’s 2012 expedited removal could be used as a predicate for his illegal reentry conviction, and affirmed the denial of the defendant’s motion to dismiss the indictment and the subsequent judgment and sentence as well as the revocation of his supervised release. Dissenting, Judge Pregerson would hold that there is a due process right to counsel during expedited removal proceedings. UNITED STATES V. PERALTA-SANCHEZ 3
The court issued a subsequent related opinion or order on August 22, 2017.
The court issued a subsequent related opinion or order on August 22, 2017.
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