United States v. Alexander Mazariegos-Mazariego

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2022
• Docket: 20-10316
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10316

Plaintiff-Appellee, D.C. No. 3:20-cr-00003-EMC-1

v. MEMORANDUM* ALEXANDER GIMARAIS MAZARIEGOS-MAZARIEGOS,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Submitted March 16, 2022** San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,*** District Judge.

Alexander Mazariegos-Mazariegos, a citizen of Guatemala, entered a

* 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 Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. conditional plea of guilty to illegal reentry under 8 U.S.C. § 1326, was sentenced

to time served, and appeals the district court’s denial of his motion to dismiss the

indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo the denial of a motion to dismiss an indictment, and we review for clear error

the district court’s factual findings. See United States v. Garcia-Gonzalez, 791

F.3d 1175, 1179 (9th Cir. 2015). The district court’s judgment is affirmed.

Mazariegos entered the United States in 2012 by crossing the border into

Arizona. He was apprehended by immigration authorities, detained, placed in

expedited removal proceedings, and deported. Mazariegos reentered the United

States in 2016. He was apprehended by immigration authorities and released to his

sister under a supervision order requiring him to remain on electronic monitoring.

In 2017, Mazariegos removed his ankle monitor and moved to California. In

January 2020, he was arrested and charged with illegal reentry.

Mazariegos moved to dismiss the indictment, arguing that his 2012 removal

violated due process and therefore could not serve as the predicate for an illegal

reentry charge. Mazariegos asserted that Luis Trujillo, the Border Patrol agent

who processed his 2012 removal, failed to review or read him the advisements on

Form I-867AB, did not ask him all the questions on Form I-867AB, failed to

advise him of the charges on Form I-860, did not obtain his signature on every

page of Form I-867A, and failed to obtain his signature upon service of Form

2 I-860. The district court held an evidentiary hearing at which Mazariegos and

Agent Trujillo testified.

Although Agent Trujillo did not specifically recall Mazariegos, the district

court found that “he testified credibly regarding his practices and training with

respect to apprehending aliens and processing the relevant paperwork for expedited

removal,” that he was in the early stages of his career and under strict supervision

by a senior Border Patrol agent during his interaction with Mazariegos, and that

Agent Trujillo’s “credibility went largely unchallenged.” By contrast, the court

found that Mazariegos’s testimony “contained multiple inconsistencies” and “was

. . . contradicted by the forms,” and “[b]ased on his demeanor and the substance of

his testimony,” the court concluded it could not “credit [his] testimony on key

points.” The court concluded that Agent Trujillo followed standard practice during

his interaction with Mazariegos—including informing him of the charges on Form

I-860, asking all questions on Form I-867, and advising him of the rights on Form

I-867—and therefore that Mazariegos’s 2012 removal satisfied due process.

The district court’s factual findings are not clearly erroneous. “In order to

reverse a district court’s factual findings as clearly erroneous, we must determine

that the district court’s factual findings were illogical, implausible, or without

support in the record.” United States v. Spangle, 626 F.3d 488, 497 (9th

Cir. 2010). “Where testimony is taken, we give special deference to the district

3 court’s credibility determinations.” United States v. Craighead, 539 F.3d 1073,

1082 (9th Cir. 2008). Nothing in the record gives any basis to conclude that the

district court’s factual findings were implausible, contradicted by evidence, or

internally inconsistent. To the contrary, the district court’s findings plausibly

weighed the documentary evidence and the credibility of Agent Trujillo and

Mazariegos.

Because we do not disturb the district court’s factual findings, it follows that

Agent Trujillo did not violate Mazariegos’s due process rights. Agent Trujillo read

the requisite charges and advisements and complied with the relevant regulations.

The fact that Agent Trujillo failed to obtain Mazariegos’s signature on every page

of Forms I-867 and I-860 does not amount to a due process violation. See United

States v. Mendez-Casillas, 272 F.3d 1199, 1205 (9th Cir. 2001). It follows that the

2012 removal provided a lawful predicate for the illegal reentry charge to which

Mazariegos pleaded guilty.

AFFIRMED.