United States v. Zamudio

• Decision Date: 14 January 2015
• Docket Number: No. 13–10322.,13–10322.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Hermilo Palmerin ZAMUDIO, aka Hermilo Zamudio Palmerin, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

787 F.3d 961

UNITED STATES of America, Plaintiff–Appellee

v.Hermilo Palmerin ZAMUDIO, aka Hermilo Zamudio Palmerin, Defendant–Appellant.

No. 13–10322.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 2014.

Filed Jan. 14, 2015.

Amended May 7, 2015.

Erick L. Guzman (argued), Law Office of Erick L. Guzman, Santa Rosa, CA, for Defendant–Appellant.

Laurie Kloster Gray (argued) and Susan B. Gray, Assistant United States Attorneys, Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, William Alsup, District Judge, Presiding. D.C. No. 3:12–cr–00532–WHA–1.

Before: J. CLIFFORD WALLACE, MARY M. SCHROEDER, and JOHN B. OWENS, Circuit Judges.

ORDER

The court's opinion filed January 14, 2015, and appearing at 776 F.3d 672 (9th Cir.2015), is hereby amended. An amended opinion is filed herewith.

With this amended opinion, the panel has voted to deny the petition for panel rehearing. That petition is therefore DENIED . No further petitions for rehearing or rehearing en banc may be filed.

OPINION

WALLACE, Senior Circuit Judge:

Zamudio was convicted of violating 8 U.S.C. § 1326, which prohibits a deported alien from being “found in” the United States after reentering without permission. Zamudio now appeals from his conviction, arguing that the underlying removal proceeding violated his due process rights, that the district court erred in failing to instruct the jury on a constructive knowledge theory for Zamudio's statute of limitations defense, and that the evidence presented to the jury proved his statute of limitations defense as a matter of law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

Zamudio was born in Mexico and came to the United States as a teenager. He subsequently became a legal permanent resident by virtue of his marriage to a United States citizen. In 1994 Zamudio pleaded guilty to kidnapping in violation of California Penal Code § 207(a) and was sentenced to three years in prison. In 1999 Zamudio was arrested and charged with felony possession of methamphetamine pursuant to California Health and Safety Code § 11377(a) and with misdemeanor possession of marijuana pursuant to § 11357(b). The marijuana charge was dismissed and Zamudio pleaded guilty to the remaining charge in 2000. Zamudio was sentenced to serve 100 days in jail.

Upon completion of his sentence, Zamudio was taken into custody by the United States Immigration and Naturalization Service (INS). The INS served Zamudio with a Notice to Appear (NTA) which charged that he was removable both because his 1994 conviction for kidnapping was an aggravated felony and because his 2000 conviction for possession of methamphetamine was a violation relating to a controlled substance.

Attorney Donald Smith was retained to represent Zamudio. Smith filed a motion for change of venue, in which he requested permission to appear by telephone. The motion was denied, and another immigration judge (IJ) later held a removal hearing. Zamudio was present, along with a Spanish interpreter, but Smith was not. The IJ contacted Smith by telephone and proceeded with the hearing.

The IJ asked Smith if he was ready to proceed with the case, and Smith said he had not seen the NTA, but that if the IJ would read it to him he could respond on behalf of his client. Smith admitted that Zamudio had no claim to U.S. citizenship and that Zamudio was convicted of methamphetamine possession in 2000 and of kidnapping in 1994; he then conceded that Zamudio was deportable based on each of his convictions. Both the IJ and Smith agreed that there was no relief from deportation available to Zamudio. The IJ then ordered Zamudio removed to Mexico.

Zamudio's second and then-current wife later testified before the district court that she traveled to Mexico several months after Zamudio's removal to bring Zamudio back to the United States. She met Zamudio in Tijuana and brought him his legal permanent resident card, or green card, which was no longer valid following his removal. On Memorial Day weekend in 2001 she drove Zamudio to a United States port of entry where the border agent requested documentation for everyone entering. She provided her driver's license, her birth certificate, and Zamudio's invalid green card. The agent looked at the green card, looked at Zamudio, and returned the documents. Then, after asking whether there was anyone else in the vehicle and checking the vehicle's trunk, the agent waved them forward through the port of entry.

In 2012 Zamudio came to the attention of immigration officials in the United States, this time while he was incarcerated at the Sonoma County Jail. He was subsequently indicted for the instant offense.

Zamudio moved to dismiss the indictment, arguing that the IJ's failure to advise Zamudio that he was eligible to apply for relief from removal rendered his removal order invalid and precluded the government from relying on it as a predicate element for the prosecution. Zamudio also argued, among other things, that he received ineffective assistance of counsel because Smith erred in conceding that Zamudio's drug conviction was for methamphetamine and Smith never came to visit Zamudio and never explained what was happening.

The district court denied Zamudio's motion to dismiss, concluding that Zamudio could not have successfully contested removability based on either his 1994 conviction for kidnapping or his 2000 conviction for drug possession. The court reasoned that the 1994 kidnapping conviction rendered Zamudio removable because kidnapping was considered a crime of violence at the time of Zamudio's removal hearing, and the 2000 conviction was also a removable offense because Zamudio's counsel had admitted at the removal hearing that the conviction was for possession of methamphetamine. The district court further concluded that any failure to advise Zamudio of his eligibility for relief from removal was not prejudicial because if Zamudio had been granted relief from removal for his 1994 conviction, he would then have been ineligible for relief from removal for his 2000 conviction.

After a two-day trial, the jury was unable to reach a verdict. On re-trial, Zamudio pursued a statute of limitations defense, arguing that the five-year statute of limitations for 8 U.S.C. § 1326 began to run in 2001 when his identification was presented to a border agent while passing through a port of entry into the United States, and therefore the charge against him was already time-barred when he was indicted in 2012. Over the government's objection, the district court allowed testimony supporting this defense from Zamudio's second wife regarding their crossing the border into the United States during the 2001 Memorial Day weekend. However, the district court ultimately denied Zamudio's renewed motion to acquit at the close of evidence based on his statute of limitations defense, and instead, over Zamudio's objections, instructed the jury with regard to the issue of Zamudio's reentry and the government's alleged knowledge that he was present in the United States illegally as follows:

When a deportee gains readmission to the United States by presenting an invalid travel document to border authorities, there is not notice to the federal authorities that his presence in the United States is illegal. In such a circumstance, the statute of limitations does not begin to run until the deportee is subsequently found in the United States by federal immigration authorities.

The jury found Zamudio guilty and he was sentenced to 37 months in prison.

Zamudio argues on appeal that the district court erred in (1) denying his motion to dismiss the indictment because the underlying deportation proceeding was fundamentally unfair, (2) omitting a jury instruction on constructive knowledge with regard to his statute of limitations defense, and (3) denying his motion for acquittal at the close of evidence based on his statute of limitations defense.

II.

(1)

We review de novo a district court's denial of a motion to dismiss an indictment, including one charging illegal reentry following deportation based on an alleged due process violation in the underlying deportation proceeding. United States v. Gonzalez–Villalobos, 724 F.3d 1125, 1129 (9th Cir.2013). To challenge the validity of the underlying deportation order in a criminal proceeding under 8 U.S.C. § 1326, the defendant must meet three requirements by showing that (1) he exhausted any available administrative remedies for relief against the order, (2) the deportation proceedings denied him the opportunity for judicial review, and (3) the entry of the order was “fundamentally unfair.” 8 U.S.C. § 1326(d). Under the third requirement, the order is “fundamentally unfair” only if the defendant shows that his due process rights were violated and that he suffered prejudice as a result. United States v. Valdez–Novoa, 760 F.3d 1013, 1020 (9th Cir.2014).

For the reasons stated in the district court's order denying Zamudio's motion to dismiss, we hold that the district court correctly concluded that Zamudio failed to meet his burden in collaterally attacking his underlying deportation proceeding. The district court correctly reasoned that both of Zamudio's convictions rendered him removable. Kidnapping in violation of California Penal Code § 207(a) is categorically a crime of violence for which Zamudio was removable based on his 1994 conviction. Delgado–Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir.2012). Zamudio's attorney's admission that the 2000 conviction was for methamphetamine possession and that Zamudio was therefore removable “relieved the government of the obligation to present any evidence on the factual question of the nature of the drug offense,” such that “the government's burden [regarding removability] [wa]s satisfied.” Perez–Mejia v. Holder, 663 F.3d...