United States v. Felipe Ambriz-Valdovinos ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50024
Plaintiff-Appellee, D.C. No.
3:18-cr-00019-DMS-1
v.
FELIPE AMBRIZ-VALDOVINOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted December 7, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Felipe Ambriz-Valdovinos appeals his conviction and sentence for illegal
reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
*
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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
under 28 U.S.C. § 1291 and affirm.
1. Ambriz-Valdovinos argues that the district court erred in denying his
motion to dismiss because the removal order supporting his § 1326 conviction is
invalid. He contends that the immigration court lacked jurisdiction over his
removal proceedings because the notice to appear (“NTA”) failed to include the
time, date, and place of his removal hearing.
This argument is foreclosed by binding precedent. See Aguilar Fermin v.
Barr, 958 F.3d 887, 889 (9th Cir. 2020) (“[A]n initial NTA need not contain time,
date, and place information to vest an immigration court with jurisdiction if such
information is provided before the hearing”), cert. denied, No. 20-53, 2020 WL
6385795 (Nov. 2, 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir.
2019) (“A notice to appear need not include time and date information to satisfy
[the regulatory jurisdictional requirements].”). Ambriz-Valdovinos believes that
Karingithi was wrongly decided. But as a three-judge panel we are bound by
Karingithi and Aguilar Fermin. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003).
Because Ambriz-Valdovinos’s jurisdictional argument fails, we need not
decide whether he needed to exhaust it under § 1326(d)(1).
2. Ambriz-Valdovinos argues that there was insufficient evidence to
support that he was free from official restraint, a necessary element of his § 1326
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offense. See United States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005).
In Bello-Bahena, we rejected a sufficiency-of-the-evidence challenge
involving similar circumstances. Id. at 1088. There, an agent observed the
defendant about a mile north of the border, at a time when visibility was
presumably poor, and there was no evidence on whether the defendant had been
under constant surveillance from the time he entered the United States until the
agent first observed him. See id. We held that “[v]iewing the evidence in the light
most favorable to the government, . . . a rational jury could have found beyond a
reasonable doubt that [the defendant] was free from official restraint for at least
some time before his apprehension.” Id.We see no material difference between the facts that supported our decision
in Bello-Bahena and the facts here. Thus, viewing the evidence in the light most
favorable to the government, there was sufficient evidence supporting that Ambriz-
Valdovinos was “free from official restraint for at least some time before his
apprehension.” Id.
3. Ambriz-Valdovinos, relying on Sessions v. Morales-Santana, 137 S.
Ct. 1678 (2017), argues that § 1326 is unconstitutional because it relies on the
definition of “alien,” which impermissibly classifies on the basis of gender. In
United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020), we considered and
rejected this argument. See id. at 1066 n.10 (rejecting the argument “that, by
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invalidating the citizenship statute at 8 U.S.C. § 1409(c), Morales-
Santana invalidated the entire definition of ‘alienage[,]’” and holding that
“[§] 1326 remains intact after Morales-Santana”). Thus, Ambriz-Valdovinos’s
argument is foreclosed by Mayea-Pulido.
4. Ambriz-Valdovinos argues that his seventy-eight month sentence
violates the Sixth Amendment because the district court considered a prior
conviction, which was neither alleged in the information nor proven beyond a
reasonable doubt to a jury, to increase the two-year statutory maximum sentence.
Although Ambriz-Valdovinos concedes that this argument was rejected in
Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998), he contends
that United States v. Haymond, 139 S. Ct. 2369 (2019), “comes so close” to
overruling Almendarez-Torres.
His argument is unpersuasive because the plurality in Haymond recognized
that its decision did not implicate Almendarez-Torres. See Haymond, 139 S. Ct. at2377 n.3 (noting that the plurality decision leaves undisturbed the exception in
Almendarez-Torres that “[p]rosecutors need not prove to a jury the fact of a
defendant’s prior conviction”). Thus, Almendarez-Torres remains good law, and
Ambriz-Valdovinos’s argument fails.
AFFIRMED.
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