United States v. Felipe Ambriz-Valdovinos

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2020
• Docket: 19-50024
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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

3 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. at

2377 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.