USA V. GAMBINO-RUIZ, No. 21-50303 (9th Cir. 2024)
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In the case before the United States Court of Appeals for the Ninth Circuit, the defendant, José Gambino-Ruiz, was convicted and sentenced for illegal re-entry into the U.S. under 8 U.S.C. § 1326. Gambino-Ruiz appealed his conviction, arguing that the removal order, which was the basis for his charge, was improper under the Immigration and Nationality Act. He also contested his sentence, claiming that the district judge considered impermissible factors in denying a downward sentencing adjustment for acceptance of responsibility.
The Court ruled that Gambino-Ruiz was properly subject to expedited removal under § 1225(b)(1)(A)(i) and therefore did not violate his due process rights when he was removed via expedited proceedings in 2013. He was properly convicted of illegal re-entry under 8 U.S.C. § 1326. Furthermore, the Court affirmed his sentence, ruling that Gambino-Ruiz did not demonstrate that his was a rare circumstance where the adjustment for acceptance of responsibility is due after the defendant has proceeded to trial.
The facts of the case are as follows: Gambino-Ruiz, a native and citizen of Mexico, entered the U.S. illegally several times. Each time, he was apprehended by border patrol agents and subsequently deported through expedited removal proceedings. In 2020, he was again found in the U.S. illegally and was charged with illegal re-entry of a removed alien. His motions to dismiss the charges and to suppress his admissions to the border patrol agents were denied, leading to a trial where he was found guilty. At sentencing, Gambino-Ruiz's request for a downward sentencing adjustment for acceptance of responsibility was denied, leading to his appeal.
Court Description: Criminal Law The panel affirmed José Gambino-Ruiz’s conviction and sentence for illegal reentry under 8 U.S.C. § 1326 in a case in which he argued (1) the removal order that served as the basis for that charge—an expedited removal—was improper under the Immigration and Nationality Act; and (2) the district judge considered impermissible factors in denying a downward sentencing adjustment for acceptance of responsibility.
In his collateral attack under 8 U.S.C. § 1326(d), Gambino-Ruiz maintained that his 2013 removal violated his due process rights because he was not inadmissible on the grounds that authorize expedited removal, and thus could not be placed in expedited removal proceedings.
The panel addressed two independent conditions set forth in 8 U.S.C. § 1225(b)(1)(A)(i) that must be satisfied for an alien to be subject to expedited removal.
The panel took as admitted that Gambino-Ruiz was, at the time of his removal, designated by the Attorney General—consistent with statutory limits on designation— as subject to expedited removal, and was thus an alien “described in” 8 U.S.C. § 1225(b)(1)(A)(iii), thereby satisfying the first condition.
The second condition requires that an immigration officer determine that the alien being examined is inadmissible, as relevant here, under 8 U.S.C.
§ 1182(a)(7). Gambino-Ruiz contended that he cannot be inadmissible under § 1182(a)(7) because he never applied for admission. The panel noted that § 1225(b)(1)(A)(iii) authorizes the government to treat designated aliens as if they were “arriving in the United States” for purposes of determining their admissibility, and that if Gambino-Ruiz was the functional equivalent of an arriving alien when he crossed the border, as Congress has deemed, then he was at that point also “an applicant for admission coming or attempting to come into the United States at a port-of- entry.” 8 C.F.R. § 1001.1(q). Lacking valid entry documents at the moment of his constructive application, Gambino-Ruiz was therefore inadmissible under § 1182(a)(7), satisfying the second condition. The panel explained that Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc), which merely rejected the view that an alien remains in a perpetual state of applying for admission, is distinguishable.
The panel held that the government thus did not violate Gambino-Ruiz’s due process rights when it removed him via expedited proceedings in 2013, and he was properly convicted of illegal reentry under § 1326.
Gambino-Ruiz argued that by focusing on Gambino- Ruiz’s post-trial statements and his decision to proceed with a jury trial, the district court considered impermissible factors in deciding whether to grant a downward adjustment at sentencing for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a) while ignoring the factors laid out in the Sentencing Guidelines. Disagreeing and affirming the sentence, the panel was not persuaded that this was the rare circumstance where the adjustment for acceptance of responsibility is due after the defendant has proceeded to trial.
Concurring, Judge Lee wrote separately to point out that Gambino-Ruiz’s collateral attack under § 1326(d) fails for another reason: Even if the panel had concluded that the removal violated Gambino-Ruiz’s due process rights, he has not established any prejudice. Judge Lee wrote that this court has on the books perhaps an accidental precedent that suggests an inadvertent shift from an individualized prejudice inquiry to a presumption of prejudice for collateral attacks under § 1326(d). Judge Lee wrote that even if the panel must follow this accidental precedent, it should construe it narrowly and presume prejudice in only rare cases.
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