FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10322
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00532-
WHA-1
HERMILO PALMERIN ZAMUDIO, AKA
Hermilo Zamudio Palmerin,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
September 9, 2014—San Francisco, California
Filed January 14, 2015
Before: J. Clifford Wallace, Mary M. Schroeder,
and John B. Owens, Circuit Judges.
Opinion by Judge Wallace
2 UNITED STATES V. ZAMUDIO
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ZAMUDIO 3
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.
COUNSEL
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.
OPINION
WALLACE, Senior Circuit Judge:
Zamudio was convicted of violating 8 U.S.C. § 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 statute of limitations defense as a matter of
4 UNITED STATES V. ZAMUDIO
law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I.
Zamudio was born in Mexico and came to the United
States as a teenager. He subsequently became a legal
permanent resident by virtue of his marriage to a United
States citizen. In 1994 Zamudio pleaded guilty to kidnapping
in violation of California Penal Code § 207(a) and was
sentenced to three years in prison. In 1999 Zamudio was
arrested and charged with felony possession of
methamphetamine pursuant to California Health and Safety
Code § 11377(a) and with misdemeanor possession of
marijuana pursuant to § 11357(b). The marijuana charge was
dismissed and Zamudio pleaded guilty to the remaining
charge in 2000. Zamudio was sentenced to serve 100 days in
jail.
Upon completion of his sentence, Zamudio was taken into
custody by the United States Immigration and Naturalization
Service (INS). The INS served Zamudio with a Notice to
Appear (NTA) which charged that he was removable both
because his 1994 conviction for kidnapping was an
aggravated felony and because his 2000 conviction for
possession of methamphetamine was a violation relating to a
controlled substance.
Attorney Donald Smith was retained to represent
Zamudio. Smith filed a motion for change of venue, in which
he requested permission to appear by telephone. The motion
was denied, and another immigration judge (IJ) later held a
removal hearing. Zamudio was present, along with a Spanish
UNITED STATES V. ZAMUDIO 5
interpreter, but Smith was not. The IJ contacted Smith by
telephone and proceeded with the hearing.
The IJ asked Smith if he was ready to proceed with the
case, and Smith said he had not seen the NTA, but that if the
IJ would read it to him he could respond on behalf of his
client. Smith admitted that Zamudio had no claim to U.S.
citizenship and that Zamudio was convicted of
methamphetamine possession in 2000 and of kidnapping in
1994; he then conceded that Zamudio was deportable based
on each of his convictions. Both the IJ and Smith agreed that
there was no relief from deportation available to Zamudio.
The IJ then ordered Zamudio removed to Mexico.
Zamudio’s second and then-current wife later testified
before the district court that she traveled to Mexico several
months after Zamudio’s removal to bring Zamudio back to
the United States. She met Zamudio in Tijuana and brought
him his legal permanent resident card, or green card, which
was no longer valid following his removal. On Memorial Day
weekend in 2001 she drove Zamudio to a United States port
of entry where the border agent requested documentation for
everyone entering. She provided her driver’s license, her birth
certificate, and Zamudio’s invalid green card. The agent
looked at the green card, looked at Zamudio, and returned the
documents. Then, after asking whether there was anyone else
in the vehicle and checking the vehicle’s trunk, the agent
waved them forward through the port of entry.
In 2012 Zamudio came to the attention of immigration
officials in the United States, this time while he was
incarcerated at the Sonoma County Jail. He was subsequently
indicted for the instant offense.
6 UNITED STATES V. ZAMUDIO
Zamudio moved to dismiss the indictment, arguing that
the IJ’s failure to advise Zamudio that he was eligible to
apply for relief from removal rendered his removal order
invalid and precluded the government from relying on it as a
predicate element for the prosecution. Zamudio also argued,
among other things, that he received ineffective assistance of
counsel because Smith erred in conceding that Zamudio’s
drug conviction was for methamphetamine and Smith never
came to visit Zamudio and never explained what was
happening.
The district court denied Zamudio’s motion to dismiss,
concluding that Zamudio could not have successfully
contested removability based on either his 1994 conviction
for kidnapping or his 2000 conviction for drug possession.
The court reasoned that the 1994 kidnapping conviction
rendered Zamudio removable because kidnapping was
considered a crime of violence at the time of Zamudio’s
removal hearing, and the 2000 conviction was also a
removable offense because Zamudio’s counsel had admitted
at the removal hearing that the conviction was for possession
of methamphetamine. The district court further concluded
that any failure to advise Zamudio of his eligibility for relief
from removal was not prejudicial because if Zamudio had
been granted relief from removal for his 1994 conviction, he
would then have been ineligible for relief from removal for
his 2000 conviction.
After a two-day trial, the jury was unable to reach a
verdict. On re-trial, Zamudio pursued a statute of limitations
defense, arguing that the five-year statute of limitations for
8 U.S.C. § 1326 began to run in 2001 when his identification
was presented to a border agent while passing through a port
of entry into the United States, and therefore the charge
UNITED STATES V. ZAMUDIO 7
against him was already time-barred when he was indicted in
2012. Over the government’s objection, the district court
allowed testimony supporting this defense from Zamudio’s
second wife regarding their crossing the border into the
United States during the 2001 Memorial Day weekend.
However, the district court ultimately denied Zamudio’s
renewed motion to acquit at the close of evidence based on
his statute of limitations defense, and instead, over Zamudio’s
objections, instructed the jury with regard to the issue of
Zamudio’s reentry and the government’s alleged knowledge
that he was present in the United States illegally as follows:
When a deportee gains readmission to the
United States by presenting an invalid travel
document to border authorities, there is not
notice to the federal authorities that his
presence in the United States is illegal. In
such a circumstance, the statute of limitations
does not begin to run until the deportee is
subsequently found in the United States by
federal immigration authorities.
The jury found Zamudio guilty and he was sentenced to 37
months in prison.
Zamudio argues on appeal that the district court erred in
(1) denying his motion to dismiss the indictment because the
underlying deportation proceeding was fundamentally unfair,
(2) omitting a jury instruction on constructive knowledge
with regard to his statute of limitations defense, and
(3) denying his motion for acquittal at the close of evidence
based on his statute of limitations defense.
8 UNITED STATES V. ZAMUDIO
II.
(1)
We review de novo a district court’s denial of a motion to
dismiss an indictment, including one charging illegal reentry
following deportation based on an alleged due process
violation in the underlying deportation proceeding. United
States v. Gonzalez-Villalobos, 724 F.3d 1125, 1129 (9th Cir.
2013). To challenge the validity of the underlying deportation
order in a criminal proceeding under 8 U.S.C. § 1326, the
defendant must meet three requirements by showing that
(1) he exhausted any available administrative remedies for
relief against the order, (2) the deportation proceedings
denied him the opportunity for judicial review, and (3) the
entry of the order was “fundamentally unfair.” 8 U.S.C.
§ 1326(d). Under the third requirement, the order is
“fundamentally unfair” only if the defendant shows that his
due process rights were violated and that he suffered
prejudice as a result. United States v. Valdez-Novoa, 760 F.3d
1013, 1020 (9th Cir. 2014).
For the reasons stated in the district court’s order denying
Zamudio’s motion to dismiss, we hold that the district court
correctly concluded that Zamudio failed to meet his burden
in collaterally attacking his underlying deportation
proceeding. The district court correctly reasoned that both of
Zamudio’s convictions rendered him removable. Kidnapping
in violation of California Penal Code § 207(a) is categorically
a crime of violence for which Zamudio was removable based
on his 1994 conviction. Delgado-Hernandez v. Holder,
697 F.3d 1125, 1127 (9th Cir. 2012). Zamudio’s attorney’s
admission that the 2000 conviction was for methamphetamine
possession and that Zamudio was therefore removable
UNITED STATES V. ZAMUDIO 9
“relieved the government of the obligation to present any
evidence on the factual question of the nature of the drug
offense,” such that “the government’s burden [regarding
removability] [wa]s satisfied.” Perez-Mejia v. Holder,
663 F.3d 403, 414–15 (9th Cir. 2011); see also
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.
2011) (an alien’s admission of factual allegations from the
NTA “binds the alien and relieve[s] the [g]overnment of the
obligation to present any evidence on th[at] factual question,”
and “an attorney’s in-court admission of the NTA’s
allegations made on behalf of his alien client is treated no
differently”) (first and third alterations in original) (internal
citations and quotation marks omitted).1 Furthermore, even if
the IJ erred in failing to advise him of his ability to apply for
relief from removal, Zamudio 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). Garcia-Jimenez v. Gonzales,
488 F.3d 1082, 1086 (9th Cir. 2007).
Zamudio’s argument that he should not be bound by
Smith’s admission because it was the result of ineffective
assistance of counsel is unavailing. The standard for
establishing ineffective assistance of counsel under the Fifth
Amendment in immigration cases is higher than the Sixth
Amendment standard set forth in Strickland v. Washington,
466 U.S. 668 (1984), so if Zamudio fails to meet the
Strickland standard, he cannot meet the higher Fifth
1
We grant Zamudio’s motion for leave to file an oversized citation of
supplemental authorities. Zamudio’s citation to Medina-Lara v. Holder,
771 F.3d 1106 (9th Cir. 2014), does not alter our analysis that Zamudio
was bound by his attorney’s admission.
10 UNITED STATES V. ZAMUDIO
Amendment standard either. Torres-Chavez v. Holder,
567 F.3d 1096, 1100 (9th Cir. 2009).
Even under Strickland, Zamudio’s counsel did not
perform below an “objective standard of reasonableness” in
failing to make legal arguments that were not yet established
at the time of Zamudio’s removal proceeding. 466 U.S. at
688. Strickland does not require attorneys to make arguments
based on cases that have not yet been decided. See Clark v.
Arnold, 769 F.3d 711, 727 (9th Cir. 2014) (“[W]e do not
expect counsel to be prescient about the direction the law will
take”) (citation and quotation marks omitted). The law in
existence at the time of Zamudio’s deportation hearing gave
Zamudio no hope of avoiding deportation. As a result, even
if Zamudio were correct that the charging and sentencing
documents for his 2000 conviction were insufficient to show
that he had been convicted of possessing a federally
prohibited drug under United States v. Vidal, 504 F.3d 1072,
1087–88 (9th Cir. 2007) (en banc), Smith cannot have been
expected to make that argument seven years before our en
banc court so held. Nor was Smith required to anticipate the
Supreme Court’s ruling in I.N.S. v. St. Cyr, 533 U.S. 289
(2001), by arguing that neither the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 nor the
Antiterrorism and Effective Death Penalty Act of 1996 could
be applied retroactively. Zamudio’s counsel therefore did not
perform deficiently either under Strickland or under the more
exacting Fifth Amendment standard.
Zamudio has also failed to demonstrate prejudice. As the
district court stated, Zamudio “does not now contend that the
statements of his attorney, made on his behalf, were factually
incorrect, and does not provide any facts that would
contradict the admissions.” At no point has Zamudio cited
UNITED STATES V. ZAMUDIO 11
“any authority for the proposition that voluntarily conceding
a true fact can fundamentally undermine the fairness of a
proceeding, nor are we aware of any.” Torres-Chavez, 567
F.3d at 1102. Under these circumstances, we will not hold
that Zamudio was prejudiced by his counsel’s challenged
actions.
(2)
Zamudio also disputes the district court’s decision not to
provide a constructive knowledge jury instruction with regard
to his statute of limitations theory. A district court’s jury
instructions are reviewed de novo as to their accuracy and for
abuse of discretion as to their formulation. United States v.
Stinson, 647 F.3d 1196, 1215 (9th Cir. 2011). However,
because we hold as a matter of law that the statute of
limitations could not have run prior to the indictment on the
facts of this case, the specific standard of review does not
change our analysis.
Although we have clarified that the statute of limitations
for “[t]he offense of being found in the United States [begins
to run] when an alien is discovered and identified by the
immigration authorities,” United States v. Hernandez,
189 F.3d 785, 791 (9th Cir. 1999), we have not addressed
whether such discovery and identification must be based on
the government’s actual knowledge or can instead be proven
under a constructive knowledge theory. See United States v.
Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir. 1995)
(discussing a constructive knowledge standard in the context
of the statute of limitations for section 1326 but declining to
reach the question). We need not reach this question,
however, because we hold that the government does not
acquire knowledge—actual or constructive—of an alien’s
12 UNITED STATES V. ZAMUDIO
illegal presence in the United States upon being presented
with an invalid travel document. The statute of limitations
therefore cannot begin to run at that point because without
such notice, the “found in” offense in section 1326 remains
incomplete.
Other circuits have adopted a similar rule on the theory
that the statute of limitations is not designed to reward
deception. For example, in United States v. Acevedo, the
Second Circuit addressed the question whether a deported
alien who reentered the United States using his real name and
some valid documents, but who presented an invalid green
card, could argue that the statute of limitations began to run
when he presented such documentation to authorities upon
reentry. 229 F.3d 350, 353–54 (2d Cir. 2000). We agree with
the Second Circuit that since “a green card is an accepted
means by which an alien may demonstrate the legality of his
admission, a deportee’s presentation of an invalid green card
. . . does not place the INS on notice that his presence in the
United States [is] illegal, even if the alien uses his real name.”
Id. at 355 (internal citations and quotation marks omitted);
see also United States v. Gordon, 513 F.3d 659, 663 (7th Cir.
2008) (“A deportee who reenters the United States by
presenting an invalid green card but uses his real name still
deceives immigration officials as to the legality of his
presence”), abrogated on other grounds by Nelson v. United
States, 555 U.S. 350 (2009); cf. United States v. Scott,
447 F.3d 1365, 1370 (11th Cir. 2006) (accepting the
defendant’s argument that the statute of limitations began to
run at his initial interview with immigration officials given
that he “was completely honest” with immigration officials
during that interview, not only giving them “his real name,
the alias he was then operating under, [and] his correct
personal information,” but also “confessing his illegal reentry
UNITED STATES V. ZAMUDIO 13
and presence in the United States, detailing the prior date of
his deportation, and detailing how he illegally reentered the
country”).
In this case, according to Zamudio’s own witness, his
2001 entry involved the presentation of an invalid green card
as if it had been a valid travel document. Zamudio’s argument
that the presentation of his green card gave immigration
authorities knowledge of his illegal presence in the United
States thus directly contradicts the only possible purpose for
presenting the green card in that context: to convince
immigration authorities that he was entering the United States
legally.
We hold that Zamudio’s “found in” offense under section
1326 was not complete—and therefore the statute of
limitations did not begin to run—when Zamudio reentered in
2001 because his presentation of an invalid green card as if it
were valid did not place authorities on notice that Zamudio’s
presence in the United States would be illegal. Zamudio’s
successful use of “specious documentation that conceal[ed]
the illegality of his presence” in crossing back into the United
States should not empower him subsequently to avoid
prosecution on the theory that the government should have
known he was entering the United States illegally. Acevedo,
229 F.3d at 353 (alteration in original), quoting United States
v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir.1995); Gordon,
513 F.3d at 668 (Ripple, J., concurring) (“I do not believe that
the Government can be charged with constructive notice
when [the defendant] presented himself at the border with an
invalid, although authentic, green card. Indeed, it seems to
me that his actions at that point can be characterized as
affirmatively misleading the Government.”).
14 UNITED STATES V. ZAMUDIO
Zamudio’s citation to United States v. Gomez, 38 F.3d
1031 (8th Cir. 1994), does not help him. In Gomez, the
defendant voluntarily filed immigration papers with INS
officials; those papers “provided virtually no truthful
biographical data,” but did contain a set of valid fingerprints.
Id. at 1033, 1037. Because those fingerprints provided a
means by which the INS could have determined, in the
exercise of diligence, Gomez’s status as a deported alien, the
court held that the “found in” violation accrued—for purposes
of commencing the statute of limitations—at the earliest point
at which a normal fingerprint processing request would have
revealed Gomez’s illegal status. Id. at 1037–38. Even if we
were to accept this out of circuit case, which we need not, it
would not change our position. In Gomez, the alien provided
INS with both the information and the means to discover his
immigration status. In this case, by contrast, Zamudio’s
presentation of his invalid green card at the border did not
provide the authorities with either the information or the
means with which to discover his immigration status.
Because Zamudio’s presentation of his invalid green card did
not enable the government to ascertain that his entry was
illegal, even in the exercise of diligence, knowledge of
Zamudio’s status cannot be imputed to the government,
regardless of whether a constructive knowledge theory
applies.
(3)
Zamudio also argues that the district court erred by failing
to grant his motion for acquittal because no reasonable jury
could have found that Zamudio failed to meet his burden of
UNITED STATES V. ZAMUDIO 15
proving his statute of limitations defense, given the evidence.
Our conclusions above with regard to Zamudio’s statute of
limitations defense foreclose this argument.
AFFIRMED.