United States v. Jose Davalos-Martinez

MEMORANDUM

Jose Fermin Davalos-Martinez (“Davalos”) appeals his conviction following a guilty plea to one count of attempted entry after deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court did not err in denying Davalos’s motion to dismiss the indictment based on the alleged invalidity of the 1993 deportation order, because the supersed ing indictment was based solely on the 2002 deportation, which is separate and independent from the 1993 deportation. As Davalos concedes, the 2002 deportation did not reinstate the prior deportation order. Cf. United States v. Anas-Ordonez, 597 F.3d 972, 982 (9th Cir.2010) (holding that none of the subsequent deportation orders provide an independent basis for conviction of illegal reentry where the subsequent orders merely reinstated an invalid deportation order). Instead, the 2002 deportation was based on Davalos’s entry into the United States on or after February 18, 1993 without being “admitted or paroled after inspection by an Immigration Officer.” Because Davalos’s reentry without being admitted or paroled “constituted a deportable offense in its own right,” the…