FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50010
Plaintiff-Appellee,
D.C. No.
v. 3:19-mj-23798-
RNB-CAB-1
MANUEL MELGAR-DIAZ,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 20-50011
Plaintiff-Appellee,
D.C. No.
v. 3:19-mj-23597-
RNB-CAB-1
JOAQUIN BENITO-MENDOZA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted May 12, 2021
Pasadena, California
Filed June 29, 2021
2 UNITED STATES V. MELGAR-DIAZ
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,
and Kathleen Cardone, * District Judge.
Opinion by Judge Bress
SUMMARY **
Criminal Law
Affirming convictions for entering the United States at a
time or place other than as designated by immigration
officers in violation of 8 U.S.C. § 1325(a)(1), the panel held
that § 1325(a)(1) does not violate the non-delegation
doctrine, and is not unconstitutionally vague—facially or as
applied.
COUNSEL
Doug Keller (argued), Law Office of Doug Keller, San
Diego, California, for Defendant-Appellant Manuel Melgar-
Diaz.
Kara Hartzler, Federal Defenders of San Diego Inc., San
Diego, California, for Defendant-Appellant Joaquin Benito-
Mendoza.
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
**
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. MELGAR-DIAZ 3
Zachary J. Howe (argued), Assistant United States Attorney;
Daniel E. Zipp, Chief, Appellate Section, Criminal Division;
Robert S. Brewer, Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
OPINION
BRESS, Circuit Judge:
The defendants in this case pleaded guilty to entering the
United States from Mexico at a time or place other than as
designated by immigration officers, in violation of 8 U.S.C.
§ 1325(a)(1). Defendants argue that § 1325(a)(1) is an
unconstitutional delegation of legislative power to
immigration officials and is void for vagueness. We hold
that these constitutional challenges fail.
I.
Manuel Melgar-Diaz, a Mexican citizen, crossed the
border from Mexico in 2019. He did not enter at a
designated port of entry. A border agent arrested Melgar-
Diaz about five miles north of the U.S. border after the agent
briefly chased him. In 2019, border agents also arrested
Joaquin Benito-Mendoza, a Mexican citizen, after he entered
the United States at a location other than a port of entry.
Agents found Benito-Mendoza hiding in brush just north of
the border, approximately eighteen miles from a port of
entry.
Before a magistrate judge, the defendants pleaded guilty
without plea agreements to misdemeanor illegal entry under
8 U.S.C. § 1325(a)(1). That statute punishes any alien who
“enters or attempts to enter the United States at any time or
4 UNITED STATES V. MELGAR-DIAZ
place other than as designated by immigration officers.”
8 U.S.C. § 1325(a)(1). Both defendants were sentenced to
time served and were released.
Despite pleading guilty, defendants appealed their
convictions to the district court. They advanced various
constitutional challenges to their convictions, which the
district court rejected. Defendants appealed, and their cases
were consolidated for our review.
II.
Although the defendants pleaded guilty, they may still
challenge the constitutionality of their statute of conviction
on appeal. See Class v. United States, 138 S. Ct. 798, 803
(2018); United States v. Chavez-Diaz, 949 F.3d 1202, 1207–
08 (9th Cir. 2020). Defendants in many § 1325(a)(1) cases
have raised the same constitutional arguments that the
defendants raise here, which district courts have repeatedly
rejected. See, e.g., United States v. Gonzalez-Pena, 445 F.
Supp. 3d 1021, 1029–31 (S.D. Cal. 2020); United States v.
Nunez-Soberanis, 406 F. Supp. 3d 835, 839–41 (S.D. Cal.
2019). Reviewing de novo, United States v. Laursen,
847 F.3d 1026, 1031 (9th Cir. 2017), we agree. Section
1325(a)(1) does not violate the non-delegation doctrine, nor
is it unconstitutionally vague.
A.
We begin with defendants’ argument that § 1325(a)
unconstitutionally delegates legislative power. Article I of
the Constitution provides that “[a]ll legislative Powers
herein granted shall be vested in a Congress of the United
States.” U.S. Const. art. I, § 1. The corollary of this grant
of power is the non-delegation doctrine, by which Congress
“may not transfer to another branch powers which are
UNITED STATES V. MELGAR-DIAZ 5
strictly and exclusively legislative.” Gundy v. United States,
139 S. Ct. 2116, 2123 (2019) (plurality opinion) (quotations
omitted).
Under modern precedent, this is an exceedingly modest
limitation. The Supreme Court has held that the non-
delegation doctrine must be applied consistent with
Congress’s essential need and ability to direct the Executive
to carry out legislative commands: “the Constitution does
not ‘deny to the Congress the necessary resources of
flexibility and practicality that enable it to perform its
functions.’” Id. (alterations omitted) (quoting Yakus v.
United States, 321 U.S. 414, 425 (1944)). Thus, Congress
“may confer substantial discretion on executive agencies to
implement and enforce the laws.” Id. (citing Mistretta v.
United States, 488 U.S. 361, 372 (1989)).
Prevailing on a non-delegation challenge is thus a tall
order. Under longstanding Supreme Court precedent, “a
statutory delegation is constitutional as long as Congress
‘lays down by legislative act an intelligible principle to
which the person or body authorized to exercise the
delegated authority is directed to conform.’” Id. (alterations
omitted) (quoting Mistretta, 488 U.S. at 372). This means
that “a delegation is permissible if Congress has made clear
to the delegee ‘the general policy’ he must pursue and the
‘boundaries of his authority.’” Id. at 2129 (alterations
omitted) (quoting Am. Power & Light Co. v. SEC, 329 U.S.
90, 105 (1946)).
These standards are “not demanding.” Id. The Supreme
Court has therefore repeatedly turned down many non-
delegation challenges, including in cases involving very
broad conferrals of authority. See, e.g., Whitman v. Am.
Trucking Ass’n, 531 U.S. 457, 473–74 (2001); Touby v.
United States, 500 U.S. 160, 166–67 (1991); Yakus, 321 U.S.
6 UNITED STATES V. MELGAR-DIAZ
at 427. In fact, “[o]nly twice in this country’s history (and
that in a single year) ha[s] [the Supreme Court] found a
delegation excessive . . . .” Gundy, 139 S. Ct. at 2129
(plurality opinion) (citing A.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935); Panama Refin. Co. v.
Ryan, 293 U.S. 388 (1935)); see also Gundy, 139 S. Ct.
at 2130–31 (Alito, J., concurring in the judgment). The case
before us does not present just the third occasion in which
applying the rarely invoked non-delegation doctrine would
be appropriate.
We return to the challenged provision, which punishes
any alien who “enters or attempts to enter the United States
at any time or place other than as designated by immigration
officers.” 8 U.S.C. § 1325(a)(1). This is a longstanding
prohibition that is routinely prosecuted in border districts.
See United States v. Aldana, 878 F.3d 877, 880–81 (9th Cir.
2017) (tracing the history and origins of § 1325(a)(1) to
1917, with its modern language dating to 1929).
Defendants interpret § 1325(a)(1) to permit any
immigration officer, with no governing standards, to
designate the times and locations when aliens may lawfully
enter the United States. In their view, it is the immigration
officers’ choice of where to place the legal points of entry
that creates the crime. That choice, they claim, lacks any
guiding principle because nothing would prevent
immigration officers from designating either all or none of
the border as a permissible place of entry.
Defendants misperceive both the statute and the
nondelegation question. Section 1325(a)(1) does not give
immigration officials the power to create crimes. Congress
instead penalized a particular type of conduct: it is a crime
to enter the United States unless an alien presents himself for
inspection at an approved time and place. Congress left for
UNITED STATES V. MELGAR-DIAZ 7
the Executive Branch merely the interstitial task of
determining those times and places, substantially similar to
a law that prohibited crossing the street outside a crosswalk
but delegated the power to decide where on the streets the
crosswalks should be striped. Congress conferring that type
of ministerial authority in § 1325(a)(1) does not present a
non-delegation concern.
Under the non-delegation doctrine, “the degree of
agency discretion that is acceptable varies according to the
scope of the power congressionally conferred.” Whitman,
531 U.S. at 475. For narrow, interstitial delegations of
authority, “Congress need not provide any direction to the”
Executive because “a certain degree of discretion, and thus
of lawmaking, inheres in most executive or judicial action.”
Id. (quotations and alteration omitted). Indeed, these types
of “feasibility” judgments are “often left to executive
officials.” Gundy, 139 S. Ct. at 2130 (plurality opinion).
In this case, by tasking the Executive with determining
the times and places of lawful entry, Congress permissibly
gave immigration officials “flexibility to deal with real-
world constraints in carrying out [their] charge” to manage
entry at the border. Id. Defendants’ challenge, if accepted,
would seemingly require us to invalidate many legislative
schemes that similarly entrust to the Executive the authority
to implement Congress’s commands at the ground level.
Precedent plainly does not support such a sweeping
limitation on Congress’s prerogatives. In Touby, for
example, the Supreme Court rejected a non-delegation
challenge to a statute that gave the Attorney General
authority temporarily to designate a drug as a controlled
substance, and through that authority “promulgate
regulations that contemplate criminal sanctions.” 500 U.S.
at 165–66. If the statute in Touby—which set forth a broad
8 UNITED STATES V. MELGAR-DIAZ
“public safety” standard—“meaningfully constrain[ed] the
Attorney General’s discretion to define criminal conduct,”
id. at 166, then § 1325(a)(1) is clearly not an excessive
delegation of power either.
But if anything, § 1325(a)(1) presents even fewer non-
delegation concerns than either Touby or our crosswalk
striping example. The Supreme Court has explained that
“the same limitations on delegation do not apply ‘where the
entity exercising the delegated authority itself possesses
independent authority over the subject matter.’” Loving v.
United States, 517 U.S. 748, 772 (1996) (quoting United
States v. Mazurie, 419 U.S. 544, 556–57 (1975)); see also
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636
n.2 (1952) (Jackson, J., concurring) (“[T]he strict limitation
upon congressional delegations of power to the President
over internal affairs does not apply with respect to
delegations of power in external affairs.”); Gundy, 139 S. Ct.
at 2137 (Gorsuch, J., dissenting) (similar).
That principle fits the statutory framework at issue here.
In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537
(1950), the Supreme Court rejected a non-delegation
challenge to a statute allowing the Executive to exclude
aliens from the United States: “there is no question of
inappropriate delegation of legislative power involved,” the
Court held, because “[t]he exclusion of aliens is a
fundamental act of sovereignty” that “stems not alone from
legislative power but is inherent in the executive power.” Id.
at 542. That broader observation necessarily applies to the
much more circumscribed, interstitial judgments that
immigration officials must make in designating the times
and places of entry into the United States. Cf. Loving,
517 U.S. at 772–73 (explaining that when the Executive
“possesses independent authority over the subject matter,”
UNITED STATES V. MELGAR-DIAZ 9
Congress may give the Executive “broad discretion to
prescribe rules on this subject”).
Of course, to the extent that Congress needed to provide
more of an intelligible principle in § 1325(a)(1), it did so.
Considering the text of § 1325(a)(1) “in ‘context’ and in
light of the statutory ‘purpose,’” Gundy, 139 S. Ct. at 2126
(plurality opinion) (quoting Nat’l Broad. Co. v. United
States, 319 U.S. 190, 214, 216 (1943)), it is obvious that
§ 1325(a)(1) does not cast immigration officials completely
adrift when they designate times and places of entry.
Contrary to defendants’ suggestion that immigration
officials could designate for entry either the entire border or
none of it, numerous laws presuppose the existence of
definite points of entry, to allow for lawful travel and
commerce and to maintain orderly operations at our borders.
See, e.g., 6 U.S.C. §§ 202, 211, 217(b)(3), 223(c); 8 U.S.C.
§§ 1103(a)(5), 1151–1160, 1181–1189, 1225, 1752;
19 U.S.C. §§ 1459, 2075(g)(2). Designating all (or none) of
the border as a place of entry would be in obvious tension
with various statutory provisions, making them superfluous
or difficult to comprehend. The government in this case
understandably disclaims the unfettered discretion that
defendants attribute to it, and the government’s position
finds ample support in the broader statutory scheme of which
§ 1325(a)(1) is but one part.
But even if we were limited to the text of § 1325(a)(1)
alone, we would not find a non-delegation problem. Section
1325(a)(1) requires that immigration officials designate
“time[s]” and “place[s]” for entry. This on its own provides
an intelligible principle: immigration officials must create
rules for the passage of people into the United States based
on the criteria of location and timing. That provides
sufficiently meaningful direction to the Executive to avoid
10 UNITED STATES V. MELGAR-DIAZ
any non-delegation concerns. Cf. Touby, 500 U.S. at 166;
Mistretta, 488 U.S. at 372–73. And that the Executive has
created a network of border entry points and detailed rules
for their operation shows that the standardless regime
defendants warn of has not come to pass. See, e.g., 8 C.F.R.
§§ 100.4, 215.8, 231.1, 235.1(a), (f), (g)(1)–(2).
In sum, if § 1325(a)(1) is unconstitutional, “then most of
Government is unconstitutional.” Gundy, 139 S. Ct. at 2130
(plurality opinion). Consistent with Supreme Court
precedent, § 1325(a)(1) does not violate the non-delegation
doctrine.
B.
The defendants’ vagueness challenge to § 1325(a)(1)
fares no better. The Fifth Amendment’s Due Process Clause
“guarantees that ordinary people have fair notice of the
conduct a statute proscribes” while “guard[ing] against
arbitrary or discriminatory law enforcement.” Sessions v.
Dimaya, 138 S. Ct. 1204, 1212 (2018) (quotations omitted);
see also United States v. Hudson, 986 F.3d 1206, 1210 (9th
Cir. 2021); Kashem v. Barr, 941 F.3d 358, 369 (9th Cir.
2019). The defendants cannot show that § 1325(a)(1)
provides unfair notice or produces arbitrary enforcement.
Defendants’ as-applied vagueness challenge to
§ 1325(a)(1) easily fails. In evaluating whether a law
provides constitutionally insufficient notice, “[w]e ask
whether the law gives a person of ordinary intelligence fair
notice of what is prohibited.” Kashem, 941 F.3d at 371
(quotations omitted). Section 1325(a)(1) penalizes
“enter[ing] the United States at any time or place other than
as designated by immigration officers.” In other words,
entering the United States at “any place other than
immigration facilities at designated ports of entry” that are
UNITED STATES V. MELGAR-DIAZ 11
“staffed by immigration officials who can accept”
applications for entry is not permitted. Aldana, 878 F.3d
at 882. That proscription is clear. Here, both defendants
were arrested in isolated areas miles away from any port of
entry. Their conduct fell within the heartland of what
§ 1325(a)(1) prohibits. See, e.g., id. at 882–83.
Nor can defendants invalidate § 1325(a)(1) as
unconstitutionally vague based on an arbitrary enforcement
theory. As applied to defendants, § 1325(a)(1) is “governed
by constitutionally sufficient standards” and does not “lack
any ascertainable standard for inclusion and exclusion.”
Kashem, 941 F.3d at 374 (quotations omitted). Defendants
“cannot claim that an impermissibly vague statute has
resulted in arbitrary enforcement [when] [their] conduct falls
well within the provision’s prohibited conduct.” United
States v. Coscia, 866 F.3d 782, 794 (7th Cir. 2017); see also
Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006)
(Sotomayor, J.) (noting that an as-applied arbitrary
enforcement challenge fails if “the conduct at issue falls
within the core of the statute’s prohibition, so that the
enforcement before the court was not the result of the
unfettered latitude that law enforcement officers and
factfinders might have in other, hypothetical applications of
the statute”). The defendants have not shown that the
government arbitrarily applied § 1325(a)(1) as to them. See
Kashem, 941 F.3d at 374. Their arbitrary enforcement claim
is instead a reprise of their non-delegation theory premised
on supposedly standardless congressional directives, which
fails for the reasons stated above.
The defendants also purport to bring a facial challenge to
§ 1325(a)(1). But even assuming defendants—who engaged
in clearly prohibited conduct—could bring this type of
challenge, see Hudson, 986 F.3d at 1214 n.3; Kashem,
12 UNITED STATES V. MELGAR-DIAZ
941 F.3d at 375–77, it would fail. Once again, defendants
largely reframe in vagueness terms their same non-
delegation theories. Having rejected defendants’ main
argument that Congress gave immigration officers
indeterminate guidance for designating times and places of
entry, we easily reject the suggestion that § 1325(a)(1)—a
longstanding and routinely used provision—is
unconstitutionally vague on its face. The defendants’ facial
vagueness challenge to § 1325(a)(1) must fail, when as here,
the statute “provides both sufficient notice as to what is
prohibited and sufficient guidance to prevent against
arbitrary enforcement.” United States v. Kuzma, 967 F.3d
959, 970 (9th Cir. 2020).
AFFIRMED.