FILED

NOT FOR PUBLICATION

SEP 18 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50266

Plaintiff-Appellee, D.C. No. 3:18-mj-02495-RNB-BAS-1 v.

FRANCISCO JAVIER PEREZ- MEMORANDUM*

MARTINEZ,

Defendant-Appellant.

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

Submitted June 12, 2019** Pasadena, California

Before: FERNANDEZ, WARDLAW, and BYBEE, Circuit Judges.

Francisco Javier Perez-Martinez was apprehended by a border patrol agent

about 23.5 miles east of the Tecate, California, Port of Entry and about 0.25 miles

north of the United States-Mexico border. Perez admitted that he was a Mexican

* 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). citizen not legally authorized to enter the United States and was arrested. Perez

appeared before a magistrate judge and pleaded guilty to violating 8 U.S.C. §

1325(a)(2). Perez appealed his conviction to the district court, arguing that it

should be vacated because there was not an adequate factual basis for his plea. The

district court affirmed and Perez appealed to this court.

Where, as here, a defendant challenges his conviction on grounds that he did

not raise before the court that imposed judgment, we review for plain error. United

States v. Escamilla-Rojas, 640 F.3d 1055, 1061 (9th Cir. 2011). An error is plain if

it is clearly inconsistent with established law “at the time of appellate

consideration.” Henderson v. United States, 568 U.S. 266, 274 (2013) (citing

Johnson v. United States, 520 U.S. 461, 468 (1997)). The magistrate judge here

erred in determining there was an adequate factual basis for Perez’s guilty plea. To

be convicted of “elud[ing] examination or inspection by immigration officers”

under § 1325(a)(2), “the alien’s conduct must occur at a designated port of entry

that is open for inspection and examination.” United States v. Corrales-Vazquez,

931 F.3d 944, 954 (9th Cir. 2019). Because Perez was apprehended 23.5 miles

east of the nearest port of entry, there was an inadequate factual basis for his

conviction. See id.

Perez’s conviction is therefore VACATED.

2

FILED

United States v. Perez-Martinez, No. 18-50266

SEP 18 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FERNANDEZ, Circuit Judge, dissenting:

I respectfully dissent for the reasons set forth in my dissenting opinion in

United States v. Corales-Vazquez, 931 F.3d 944, 956–59 (9th Cir. 2019).