United States v. Melgar-Diaz

• Decision Date: 29 June 2021
• Docket Number: No. 20-50010, No. 20-50011,20-50010
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel MELGAR-DIAZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Joaquin Benito-Mendoza, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

2 F.4th 1263

UNITED STATES of America, Plaintiff-Appellee,

v.Manuel MELGAR-DIAZ, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Joaquin Benito-Mendoza, Defendant-Appellant.

No. 20-50010

No. 20-50011

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2021 Pasadena, California

Filed June 29, 2021

Doug Keller (argued), Law Office of Doug Keller, San Diego, California, for Defendant-Appellant Manuel Melgar-Diaz.

Kara Hartzler, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant Joaquin Benito-Mendoza.

Zachary J. Howe (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges, and Kathleen Cardone,^* District Judge.

BRESS, Circuit Judge:

The defendants in this case pleaded guilty to entering the United States from Mexico at a time or place other than as designated by immigration officers, in violation of 8 U.S.C. § 1325(a)(1). Defendants argue that § 1325(a)(1) is an unconstitutional delegation of legislative power to immigration officials and is void for vagueness. We hold that these constitutional challenges fail.

I.

Manuel Melgar-Diaz, a Mexican citizen, crossed the border from Mexico in 2019. He did not enter at a designated port of entry. A border agent arrested Melgar-Diaz about five miles north of the U.S. border after the agent briefly chased him. In 2019, border agents also arrested Joaquin Benito-Mendoza, a Mexican citizen, after he entered the United States at a location other than a port of entry. Agents found Benito-Mendoza hiding in brush just north of the border, approximately eighteen miles from a port of entry.

Before a magistrate judge, the defendants pleaded guilty without plea agreements to misdemeanor illegal entry under 8 U.S.C. § 1325(a)(1). That statute punishes any alien who "enters or attempts to enter the United States at any time or place other than as designated by immigration officers." 8 U.S.C. § 1325(a)(1). Both defendants were sentenced to time served and were released.

Despite pleading guilty, defendants appealed their convictions to the district court. They advanced various constitutional challenges to their convictions, which the district court rejected. Defendants appealed, and their cases were consolidated for our review.

II.

Although the defendants pleaded guilty, they may still challenge the constitutionality of their statute of conviction on appeal. See Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 803, 200 L.Ed.2d 37 (2018) ; United States v. Chavez-Diaz , 949 F.3d 1202, 1207–08 (9th Cir. 2020). Defendants in many § 1325(a)(1) cases have raised the same constitutional arguments that the defendants raise here, which district courts have repeatedly rejected. See, e.g. , United States v. Gonzalez-Pena , 445 F. Supp. 3d 1021, 1029–31 (S.D. Cal. 2020) ; United States v. Nunez-Soberanis , 406 F. Supp. 3d 835, 839–41 (S.D. Cal. 2019). Reviewing de novo, United States v. Laursen , 847 F.3d 1026, 1031 (9th Cir. 2017), we agree. Section 1325(a)(1) does not violate the non-delegation doctrine, nor is it unconstitutionally vague.

A.

We begin with defendants’ argument that § 1325(a) unconstitutionally delegates legislative power. Article I of the Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const. art. I, § 1. The corollary of this grant of power is the non-delegation doctrine, by which Congress "may not transfer to another branch powers which are strictly and exclusively legislative." Gundy v. United States , ––– U.S. ––––, 139 S. Ct. 2116, 2123, 204 L.Ed.2d 522 (2019) (plurality opinion) (quotations omitted).

Under modern precedent, this is an exceedingly modest limitation. The Supreme Court has held that the non-delegation doctrine must be applied consistent with Congress's essential need and ability to direct the Executive to carry out legislative commands: "the Constitution does not ‘deny to the Congress the necessary resources of flexibility and practicality that enable it to perform its functions.’ " Id. (alterations omitted) (quoting Yakus v. United States , 321 U.S. 414, 425, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ). Thus, Congress "may confer substantial discretion on executive agencies to implement and enforce the laws." Id. (citing Mistretta v. United States , 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ).

Prevailing on a non-delegation challenge is thus a tall order. Under longstanding Supreme Court precedent, "a statutory delegation is constitutional as long as Congress ‘lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.’ " Id. (alterations omitted) (quoting Mistretta , 488 U.S. at 372, 109 S.Ct. 647 ). This means that "a delegation is permissible if Congress has made clear to the delegee ‘the general policy’ he must pursue and the ‘boundaries of his authority.’ " Id. at 2129 (alterations omitted) (quoting Am. Power & Light Co. v. SEC , 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946) ).

These standards are "not demanding." Id. The Supreme Court has therefore repeatedly turned down many non-delegation challenges, including in cases involving very broad conferrals of authority. See, e.g. , Whitman v. Am. Trucking Ass'n , 531 U.S. 457, 473–74, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ; Touby v. United States , 500 U.S. 160, 166–67, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) ; Yakus , 321 U.S. at 427, 64 S.Ct. 660. In fact, "[o]nly twice in this country's history (and that in a single year) ha[s] [the Supreme Court] found a delegation excessive ...." Gundy , 139 S. Ct. at 2129 (plurality opinion) (citing A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) ; Panama Refin. Co. v. Ryan , 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935) ); see also Gundy , 139 S. Ct. at 2130–31 (Alito, J., concurring in the judgment). The case before us does not present just the third occasion in which applying the rarely invoked non-delegation doctrine would be appropriate.

We return to the challenged provision, which punishes any alien who "enters or attempts to enter the United States at any time or place other than as designated by immigration officers." 8 U.S.C. § 1325(a)(1). This is a longstanding prohibition that is routinely prosecuted in border districts. See United States v. Aldana , 878 F.3d 877, 880–81 (9th Cir. 2017) (tracing the history and origins of § 1325(a)(1) to 1917, with its modern language dating to 1929).

Defendants interpret § 1325(a)(1) to permit any immigration officer, with no governing standards, to designate the times and locations when aliens may lawfully enter the United States. In their view, it is the immigration officers’ choice of where to place the legal points of entry that creates the crime. That choice, they claim, lacks any guiding principle because nothing would prevent immigration officers from designating either all or none of the border as a permissible place of entry.

Defendants misperceive both the statute and the nondelegation question. Section 1325(a)(1) does not give immigration officials the power to create crimes. Congress instead penalized a particular type of conduct: it is a crime to enter the United States unless an alien presents himself for inspection at an approved time and place. Congress left for the Executive Branch merely the interstitial task of determining those times and places, substantially similar to a law that prohibited crossing the street outside a crosswalk but delegated the power to decide where on the streets the crosswalks should be striped. Congress conferring that type of ministerial authority in § 1325(a)(1) does not present a non-delegation concern.

Under the non-delegation doctrine, "the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." Whitman , 531 U.S. at 475, 121 S.Ct. 903. For narrow, interstitial delegations of authority, "Congress need not provide any direction to the" Executive because "a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action." Id. (quotations and alteration omitted). Indeed, these types of "feasibility" judgments are "often left to executive officials." Gundy , 139 S. Ct. at 2130 (plurality opinion).

In this case, by tasking the Executive with determining the times and places of lawful entry, Congress permissibly gave immigration officials "flexibility to deal with real-world constraints in carrying out [their] charge" to manage entry at the border. Id. Defendants’ challenge, if accepted, would seemingly require us to invalidate many legislative schemes that similarly entrust to the Executive the authority to implement Congress's commands at the ground level.

Precedent plainly does not support such a sweeping limitation on Congress's prerogatives. In Touby , for example, the Supreme Court rejected a non-delegation challenge to a statute that gave the Attorney General authority temporarily to designate a drug as a controlled substance, and through that authority "promulgate regulations that contemplate criminal sanctions." 500 U.S. at 165–66, 111 S.Ct. 1752. If the statute in Touby —which set forth a broad "public safety" standard—"meaningfully constrain[ed] the Attorney General's discretion to define criminal conduct," id. at 166, 111 S.Ct. 1752, then § 1325(a)(1) is clearly not an excessive delegation of power either.

But if anything, § 1325(a)(1) presents even fewer nondelegation concerns than either Touby or our crosswalk striping example. The Supreme Court has explained that "the same limitations on delegation do not apply ‘where the entity exercising...