United States v. Arturo Lopez-Vasquez

1 F.3d 751 UNITED STATES of America, Plaintiff-Appellee, v. Arturo LOPEZ-VASQUEZ, Defendant-Appellant. No. 92-50271. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 8, 1993. Decided Feb. 8, 1993. As Amended on Denial of Rehearing and Rehearing En Banc June 30, 1993. Dissenting Opinion from Order of Denial of Rehearing En Banc of Circuit Judge O'Scannlain Aug. 10, 1993. John Lanahan, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant. Sherri L. Walker and Jay Alvarez, Asst. U.S. Attys., San Diego, CA, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: BROWNING, POOLE and NOONAN, Circuit Judges. ORDER 1 The opinion in United States v. Lopez-Vasquez, No. 92-50271, slip op. 1043 (9th Cir. Feb. 8, 1993) is amended as follows: 2 With these amendments the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. 3 The full court was advised of the suggestion for en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges…

DISSENT FROM THE ORDER OF DENIAL OF REHEARING EN BANC

Aug. 10, 1993.

dissenting from the order of denial of rehearing en banc:

When a panel of this court announces a new per se rule — indeed, one that misreads an en banc decision we rendered less than a year ago, that rests on an empirical foundation consisting entirely of unsubstantiated speculation, and that in any event adds nothing in the way of real protection for the right it is intended to safeguard — reasonably good cause exists to assemble the en banc court. When that new per se rule stands controlling Supreme Court precedent on its head, and introduces the altogether remarkable notion of a fundamental constitutional right to appeal, the case for en banc rehearing becomes overwhelming. Our court has decided otherwise, and from that decision I must respectfully dissent.

I

Let us begin where the panel should have, with an examination of the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987), and that of our en banc court in United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992) (en banc). For while the panel’s opinion indeed quotes the language of…

ORDER

The opinion in United States v. Lopez-Vasquez, No. 92-50271, slip op. 1043 (9th Cir. Feb. 8, 1993) is amended as follows:

[Editor’s Note: Amendments have been incorporated into published opinion.]

With these amendments the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en bane consideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

I.

Arturo Lopez-Vasquez was deported May 3, 1991. On August 28, 1991, he attempted to enter the United States from Mexico through a border patrol checkpoint. He told border patrol agents he was a United States citizen but had no identification because his wallet had been stolen. Lopez-Vasquez consented to a search of his bag and agents found a card with the name “Arturo Vasquez.” A computer search under that name revealed an extensive criminal history and prior deportations, including…