United States v. America Aguilar-Reyes ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50074
Plaintiff-Appellee, D.C. No. 2:18-cr-00540-PA-1
v.
MEMORANDUM*
AMERICA AGUILAR-REYES, AKA
America Aguilar, AKA America Reyes
Aguilar, AKA America Aguilar Ferrino,
AKA Marisol Flores, AKA Sandra Lopez,
AKA Areyery Reyes,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted December 7, 2020
San Francisco, California
Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges.
America Aguilar-Reyes challenges the district court’s denial of her motion to
dismiss the indictment charging her with illegal reentry in violation of 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
§ 1326, for which she was later convicted. We affirm. Because the parties are
familiar with the facts of the case, we do not repeat them here except where required
to give context to our ruling.
A person is guilty of the offense of illegal reentry if she “has been denied
admission, excluded, deported, or removed [from] the United States . . . and
thereafter enters, attempts to enter, or is at any time found in, the United States.” 8
U.S.C. § 1326(a). Aguilar-Reyes challenges three prior deportation orders—entered
in 2001, 2005, and 2012—that underlie her conviction. Because we hold that the
2012 removal order was valid, we do not reach Aguilar-Reyes’s challenges to the
2001 and 2005 removal orders.
The 2012 removal order was entered pursuant to 8 U.S.C. § 1225(b)(1)(A)(i),
which permits expedited removal of any person “[i]f an immigration officer
determines that an alien . . . who is arriving in the United States . . . is inadmissible
under section 1182(a)(6)(C) or 1182(a)(7) of this title.” If the conditions are met,
“the officer shall order the alien removed from the United States without further
hearing or review unless the alien indicates either an intention to apply for asylum
under section 1158 of this title or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i).
Section 1182(a)(6)(C) applies to “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure . . . admission into the United
States.” Finally, § 1182(a)(7) applies to “any immigrant at the time of application
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for admission who is not in possession of a valid unexpired . . . entry document[.]”
Aguilar-Reyes’s 2012 determination of inadmissibility was based on both
fraud and the possession of invalid entry documents. It is undisputed that, in 2012,
Aguilar-Reyes attempted to enter the United States by presenting an LPR card that
did not belong to her.
Furthermore, Aguilar-Reyes’s assertions that her 2012 expedited removal
independently violated her due process rights are unavailing. As an initial matter,
Aguilar-Reyes did not raise this until her opening brief. The appellate court will not
review an issue for the first time on appeal absent narrow exceptions including—as
relevant here—a showing of plain error affecting substantial rights. United States v.
Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991); Fed. R. Crim. P. 52(b).
Furthermore, Aguilar-Reyes did not present any evidence or allegations to the
district court that would support dismissal based on infirmities in the 2012 expedited
removal. It was therefore not plainly erroneous for the district court to deny the
motion to dismiss. See United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir.
1994). Because the 2012 removal was independent of the 2001 and 2005 removals,
and the 2012 removal was a sufficient predicate for the offense of illegal reentry, the
district court did not err by denying Aguilar-Reyes’s motion to dismiss the
indictment.
Based on our disposition, the Government’s pending motion to take judicial
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notice is denied as moot.
AFFIRMED.
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