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United States v. Zamudio

United States Court of Appeals, Ninth Circuit

January 14, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
HERMILO PALMERIN ZAMUDIO, AKA Hermilo Zamudio Palmerin, Defendant-Appellant

Argued and Submitted, September 9, 2014, San Francisco, California

Page 673

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

SUMMARY [*]

Criminal Law

The panel affirmed a conviction for violating 8 U.S.C. § 1326, which prohibits a deported alien from being " found in" the United States after reentering without permission.

The panel held that the district court correctly concluded that the defendant failed to meet his burden in collaterally attacking his underlying deportation proceeding. The panel observed that kidnapping in violation of California Penal Code § 207(a) is categorically a crime of violence for which the defendant was removable based on his 1994 conviction; and that the defendant's attorney's admission that his 2000 conviction was for methamphetamine possession and that the defendant was therefore removable satisfied the government's burden regarding removability. The panel held that even if the immigration judge erred in failing to advise the defendant of his ability to apply for relief from removal, the defendant suffered no prejudice because if he had obtained relief from removal for his 1994 conviction under 8 U.S.C. § 1182(c), that would have rendered him ineligible for relief from removal for his 2000 conviction under 8 U.S.C. § 1229b(c)(6). The panel rejected the defendant's contention that his attorney's admission regarding the 2000 conviction was the result of ineffective assistance of counsel.

Rejecting the defendant's contention that the district court erred in failing to instruct the jury on a constructive knowledge theory for the defendant's statute of limitations defense, the panel held that the defendant's " found in" offense under § 1326 was not complete -- and therefore the statute of limitations did not begin to run -- when the defendant reentered in 2001 because his presentation of an invalid green card as if it were valid did not place authorities on notice that the defendant's presence in the United States would be illegal.

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

Susan B. Gray, Assistant United States Attorney (argued), Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, San Francisco, California, for Plaintiff-Appellee.

Before: J. Clifford Wallace, Mary M. Schroeder, and John B. Owens, Circuit Judges. Opinion by Judge Wallace.

OPINION

Page 674

WALLACE, Senior Circuit Judge

Zamudio was convicted of violating 8 U.S.C. ยง 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 ...


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