United States v. Jose Zepeda-Gonzalez

MEMORANDUM *

Jose Santos Zepeda-Gonzalez (Zepeda), a native and citizen of Mexico, appeals his conviction for illegal reentry in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Title 8, Section 1326 provides criminal penalties for (1) any alien, who (2) has been removed from the United States, and (3) is later found in the United States without having first obtained the consent of the Attorney General to reapply for admission. 8 U.S.C. § 1326 (a)(1)-(2); see also United States v. Gondinez-Rabadan, 289 F.3d 630, 632-33 (9th Cir.2002).

At trial, the government introduced evidence that Zepeda is an alien; that he had been removed from the United States three times, pursuant to a June 15, 2000 removal order, a June 14, 2003 expedited removal order, and a reinstatement of his June 15, 2000 removal order on October 25, 2010; and that he was found in the United States on March 13, 2013, without the Attorney General’s advance consent to reapply for admission.

1. To the extent the district court relied on Zepeda’s June 15, 2000 removal order and that order’s October 25, 2010 reinstatement as predicates for an illegal reentry conviction,…

FILED

NOT FOR PUBLICATION MAY 18 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50406

Plaintiff - Appellee, D.C. No. 3:13-cr-01661-LAB-

v.

MEMORANDUM*

JOSE SANTOS ZEPEDA-GONZALEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted August 4, 2014 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Jose Santos Zepeda-Gonzalez (Zepeda), a native and citizen of Mexico,

appeals his conviction for illegal reentry in violation of 8 U.S.C. § 1326. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Title 8, Section 1326 provides criminal penalties for (1) any alien, who (2)

has been removed from the United States, and (3) is later found in the United

States without having first obtained the consent of the Attorney General to…

dissenting.

I would reverse Zepeda-Gonzalez’s conviction under 8 U.S.C. § 1326 . Because Zepeda-Gonzalez’s 2013 illegal reentry occurred after the five-year period for seeking advance consent triggered by his 2003 removal had expired, he was not required to obtain such consent and thus did not violate that statute.

As the majority correctly concludes, two of Zepeda-Gonzalez’s removal orders — the 2000 removal order for his felony DUI conviction, and the reinstatement of that removal order in 2010 — are “statutorily flawed” under Leocal v. Ashcroft, 543 U.S. 1 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004), which we apply retroactively, United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir.2014), and therefore cannot be used as predicates for an illegal reentry conviction under § 1326. This leaves only the 2003 removal order that required Zepeda-Gon-zalez to obtain advance consent. The bar that resulted from that order, standing alone, expired long before the 2013 illegal reentry. The majority holds, however, that even though the 2000 and 2010 removal orders are invalid, they nonetheless constitute additional removals triggering a twenty-year period during which Zepeda-Gonzalez was…