United States v. Refugio Agustin-Pineda

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 7, 2020
• Docket: 19-30108
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30108

Plaintiff-Appellee, D.C. No. 2:18-CR-00174-TOR-1

v. MEMORANDUM* REFUGIO AGUSTIN-PINEDA,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Refugio Agustin-Pineda appeals from the district court’s judgment and

challenges his guilty-plea conviction for being an alien in the United States after

deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

* 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). Agustin-Pineda contends that the immigration judge lacked jurisdiction to

issue the removal order underlying his conviction, and therefore that the district

court should have granted his motion to dismiss the indictment. We review de

novo the denial of a motion to dismiss an indictment based on alleged due process

defects in the underlying deportation proceeding. See United States v. Ubaldo-

Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004).

As Agustin-Pineda concedes, his argument that the lack of a time and date

on his Notice to Appear divested the immigration judge of jurisdiction over his

underlying removal proceedings is foreclosed by our opinion in Karingithi v.

Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019), cert. denied sub nom. Karingithi v.

Barr, 140 S. Ct. 1106 (2020). Notwithstanding Agustin-Pineda’s assertion that

Karingithi was wrongly decided, it controls our decision here. See United States v.

Boitano, 796 F.3d 1160, 1164 (9th Cir. 2015) (“[A]s a three-judge panel we are

bound by prior panel opinions and can only reexamine them when the reasoning or

theory of our prior circuit authority is clearly irreconcilable with the reasoning or

theory of intervening higher authority.” (internal quotation marks omitted)).

Accordingly, the district court did not err in denying the motion to dismiss the

indictment.

AFFIRMED.

2 19-30108