F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

H E R MI L O P ALME R

I N Z AM UD I O , AKA Hermilo Z amudio Palmerin, Defendant-Appellant

. No. 13-10322

D.C. No. 3:12-cr-00532-W HA-1

ORDER AND AMENDED OPI

NI ON

Appeal from the United States District Court for the Northern District of California W illiam Alsup, District J udg e, Presiding

Argued and Submitted September 9, 2014—San F rancisco, California

F iled J anuary

14, 2015 Amended May 7, 2015

B efore: J . Clifford W allace, Mary M. Schroeder, and J ohn B . Owens, Circuit J udg es.

Order; Opinion by

J udg e W allaceU N I T E D S T A T E S V

. Z AM U D I O 2

SUMMARY *

Crim inal Law

The panel ( 1) amended an opinion filed J anuary 14, 2015, affirming a conviction for v i o lating 8 U.S.C. § 1 326, which prohibits a d eported al i e n f r om b eing “found in” the United States after reentering without permission; and (2) denied a petition for panel rehearing

.

The panel held that the district court correctly concluded that the defendant faile d to meet his burden in collaterally attacking his underlying deportation proceeding

. The panel observed that kidnapping in violation of C a lifornia Penal Code § 207(a) is categ orically a crime of violence for which the defendant was removable based on his 19 9 4 c o n viction; and that the defendant’s attorney ’s admission that h i s 2000 conviction was for methamphetamine possession and that the d e f e n d a nt w a s therefore removable satisfied the g o v e r nm e nt ’ s burden reg arding r emovability

. The panel h e l d t h at even if the immig ration judg e e r

red in failing to advise the defendant of his ability to apply for relief f rom removal, the defendant suffered no prejudice because i f h e had obtained relief from

r emoval for his 1994 conviction under 8 U.S.C. § 11 8 2 ( c ), that would have rendered h im i n e lig ible for relief from removal for his 2000 c o nvict i o n u nder 8 U .S.C. § 1229b(c)(6). The panel rejected the defendant’s contention that his attorney ’s a d mission r eg a rding the 2000 conviction was the result of ineffective assistance of counsel.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv en i en ce o f

th e read er.U N I T E D S T A T E S V

. Z AM U D I O 3

Rejecting the def

endant’s contention that the district court erred in fai ling to instruct the jury on a constructive knowledg e theory for the defend a n t ’s statute of limitations defense, the p anel h el d that the defendant’s “found in” offense under § 1326 was n o t complete – and therefore the
statute of limitations did not beg in to run – when the defendant reentered in 2001 because his presentatio n o f an invalid g reen card as if it were valid did not place authorities

on notice that the d efendant’s presen ce i n t he United States would be illeg al. On the facts of this case, the panel did not need to r each the question of whether constructive knowledg e

can or should be imputed to the go v e rnment when a defendant leaves accurate inform a t i o n with the g overnment from which it c ould be determined that the defendant is in the country illeg ally

.

COUNSEL

Erick L . Guz man (arg

ued), L aw Office of Erick L . Guz man, Santa Rosa, California, for Defendant-Appellant.

L aurie Kloster Gray (arg

ued) a n d Susan B

. Gray
, As s i s t ant United States Attorne y s , Melinda Haag
, United States Attorney
, B arbara J

. Valliere, Chief, Appellate Division, San F rancisco, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. Z AM U D I O 4

ORDER

The court’s opinion filed J anuary 14, 2015, and appearing
at 776 F .3d 672 (9th Cir. 2015), is hereby amended

. A n amended opinion is filed herewith.

W ith this amended o p i n i o n , the panel has voted to deny the petition for panel rehearing

. That p et i t i o n is therefore DENIED

. No further petitions for rehearing or rehearing

en banc may be filed.

OP INION

W A L L ACE, Senior Circuit J udg e:

Z amudio was convicted of v iolating 8 U.S.C. § 1326,

w h i ch prohibits a deported alien from b eing “found in” t h e United States after reentering without permission. Z amudio

now appeals from h is c onviction, arguing that the underly ing removal proceeding violated his due process rights, that the d i strict court erred in failing to instruct the jury on a constructive knowledg e theory for Z amudio’s statute o f limitations defense, and that the evide n ce presented to the jury p roved h is stat u t e o f limitations defense as a matter o f law. W e have jurisdiction pursuant to 2 8 U.S.C. § 1291, a nd we affirm.

I

.

Z amudio was born in Mex ico and came to the United States as a teenag er. He subsequently became a leg al permanent resident b y virtue of his marriage t o a UnitedU N I T E D S T A T E S V

. Z AM U D I O 5

States citiz en. In 1994 Z amudio pleaded g uilty to kidnapping in violation of California Penal Cod e § 207(a) and was sentenced to thre e y e a

rs in p r ison. In 1999 Z amudio was

a r r e s t e d a n d c h a r g e d w i t h f e l o n y p o s s e s s i o n o f

m e thamphetamine pursuant to California Health and Saf et y Code § 11377(a) and with misdemeanor p osse s sion o f marijuana p ursuant to § 11357(b). The marijuana charg e was dismissed and Z amudio pleaded g uilty to the remaining charg e in 2000. Z amudio was sentenced to serve 100 day s in jail.

Upon completion of his sentence, Z amudio was taken into custody by the United States I mmig ration and Naturaliz ation Service ( I NS). The I

NS served Z amudio with a N otice to Appear (NTA) which charg e d that he w as removable both because his 1994 conviction f or kidnapping was an ag g r avated felony and because his 2000 c onviction for possession of methamphetamine was a violation relating to a controlled substance.

Attorney Donald Smith was retained to r e present Z amudio. Smith filed a motion for chang e of venue, in which he requested permission to a ppear by telephone. The motion

was denied, and another imm i gr a tion judg e (I J ) later held a removal hearing

. Z amudio was present, a long with a Spanish interpreter, but Smith was not. The I J contac t e d S mith b y telephone and proceeded with the hearing

.

The I J as k e d S mith if he w as ready to proceed with the
case, and Smith said he had n ot seen the NTA, but t h a t if the I J would r ead it to h im he could respond on behalf o f h i s client. Smith admitted that Z amudio had no c laim t o U .S. c itiz enship and that Z amudio was convicted o f methamp h e t a m ine possession in 2 000 and of kidnapping inU N I T E D S T A T E S V

. Z AM U D I O 6

1994; he then conceded that Z amudio was d eportable based

on each o f his c onvictions. B oth the I J and Smith ag reed that there was n o relief from deportation available to Z amudio. The I J then ordered Z amudio removed to Mex ico.

Z amudio’s second and then-current wife later testified before the distr ict court that she traveled to Mex ico several months a fter Z amudio’s removal to bring Z a m udio back to the United States. She met Za mudio in Tijuana and broug ht him his le ga l p ermanent resident card, or g reen card, which

was no long er valid following h is removal. On Memorial Day weekend in 2001 she drove Z amudio to a United States port of entry where the border ag ent requested documentation for
every one entering

. She provided her driver’s license, her birth certificate, and Z amudio’s invalid g reen card. The ag ent looked at the g reen card, looked at Z amudio, and returned the documents. Then, after asking whether there was anyone else in the vehicle and checking the vehicle’ s trunk, the ag ent waved them forward throug h the port of entry

.

In 2012 Z amudio came to the attention of immig r ation officials in t h e United States, this time while he was incarcerated at the Sonoma County J ail. He was subsequently indicted for the instant offense.

Z amudio mov ed to dismiss the indictment, arguing that the I J ’s f ailure to advise Z amu d i o t hat he was elig ible to apply for r e l ief from removal rendered his removal order invalid and precluded the g overnment from rely ing on it as a predicate element for the prosecution. Z amudio also argued,
among o ther thing s, that he received ineffective assistance o f counsel because Smith erred in c onceding that Z amudi o’s drug conviction was for methamphetamine and Smith neverU N I T E D S T A T E S V

. Z AM U D I O 7

came to visit Z am u d i o and n ever ex plained what was happening

.

The district court d enied Z amudio’s motion to dism i ss, concluding that Z amudio could not have succes s f u lly contested removability based on either his 1 994 conv i c t i on for kidnapping or his 2000 conviction for drug poss e s s i o n. The court reasoned that the 1994 kidnapping conviction rendered Z amudio removable b ec ause kidnapping was considered a crime of violence at the time of Z amudi o ’s removal hearing
, and t h e 2 000 conviction was also a removable offense because Z amudio’s counsel had admitted
at the removal hearing that the conviction was for possession of methamphetamine. The d istrict court further concluded that any f a ilure to advise Z amudio of his elig ibility for relief from removal was not prejud icial because if Z amudio h ad been g ranted relief f

rom r emoval f

or his 1994 conviction, he would then have been inelig ible for r elief fr om removal for his 2000 conviction.

After a two-day tri a l
, t h e jury was unable to reach a verdict. On r e-trial, Z amudio pursued a statute of limitations defense, arguing that the f i v e-year statute of limitations for 8 U.S.C. § 1326 beg an to run in 2001 when his identification

was presented to a b order a g ent while passing throug h a port of entry into the United States, and therefor e t h e charg e ag ainst him was already time-barred when he was indicted in 2012. Over the g overnment’s objection, the dist ri ct court allowed testi m o n y supporting this defense from Z amudio’s second wife reg a rd i n g their crossing the border into the United States during the 2001 Memorial D ay weekend. H owever, the district court u ltimately denied Z amudi o ’s renewed motion to acquit a t the c lose of evidence based on his statute of limitations defense, and instead, over Z amudio’sU N I T E D S T A T E S V

. Z AM U D I O 8

objections, instructed the jury with re ga r d to the issue o f Z amudio’s reentry

and the g o vernment’s alleg e d knowledg e that he was present in the United States illeg ally as follows:

W h e n a deportee g ains readmission to t h e United States by prese n t i n g an invalid travel documen t t o border authorities, there is not notice to th e f

ederal authorities that his
presence in the Un i t e d States is illeg al. In such a c ircumstance, the statute of limitations d o e s not beg in to run until the deportee is subsequently found in the United States b y federal immigration authorities.

The jury f

ound Z amudio g uilty and he was sentenced to 37 months in prison.

Z amudio argues o n appeal that the d istrict court e rred in (1) d e nying his motion to dismiss the indictment because the underlying deportation proceeding was fundamentally unfair, (2) omitting a jury instruction o n const ru ctive knowledg e with reg ard to his statute of limitations defense, a nd (3) d enying his motion for a cq u i t t al at the close of evidence based on his statute of limitations defense.

I I

. (1)

W e review de novo a district court’s d enial of a motion to dismiss an indictment, including o n e charg ing illeg a l reentry following deportation b ased on a n alleg ed due process

v i o lation in the underlying deportation proceeding

. United States v. Gonzalez-Villalobos
, 724 F .3d 1125, 1129 (9th Cir.U N I T E D S T A T E S V

. Z AM U D I O 9

2013). To challeng e the v a lidity of the underly ing deportation order in a criminal p r o c e ed i n g under 8 U.S.C. § 1326, the defendant must meet three requirements by s h o w i ng that (1) he ex h austed any available administrative remedies f o r relief a g ainst the order
, ( 2 ) the deportation proceeding s denied him the opportu nity for judicial review, a nd ( 3) the
ent ry o f the order w as “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 rig hts were v i o l a t e d and that he suffered prejudice as a result. United S tates v

. Valdez-Novoa
, 760 F .3d 1013, 1020 (9th Cir. 2014).

F or the reasons stated in the district court’s order denying Z amudio’s motion to dismiss, we hold that the district court correctly concluded that Z amudio failed to m eet his burden in collaterally attacking h is underly ing d e p o r t a t i on proceeding

. The district c ourt c o r rectly r easoned that both o f Z amudio’s convictions rendered him removable. Kidnapping in v iolation of California Penal Code § 207(a) is categ orically

a crime of violence for which Z amudio w as removable based

on his 1994 conviction. Delgado-Hernandez v. H older
, 697 F .3d 1125, 1127 (9th Cir. 2012). Z amud i o ’ s attorney ’s admission that the 2000 conviction w a s f o r m e t h a m p hetamine
p o s s e ssion a

nd that Z amudio was therefore removabl e “relieved the g overnment of the oblig ation to present any evidence on the factual questio n of the nature of the d rug offense,” such that “the g overnment’s burden [ reg arding removabil i t y ] [ wa] s satisfied.” Perez-Mejia v. H older
, 6 6 3 F .3d 403, 414–15 (9th Cir. 2011); see al s o Santiago-Rodriguez v. Holder
, 657 F .3d 820, 8 2 9 (9 t h C i r. 201 1 ) (an alien’s a dmission of factual alleg ations from the NTA “binds the alien and relieve[ s] the [ g ] o v ernment of the oblig ation to p resent any evidence on th[ at] factual question,”U N I T E D S T A T E S V

. Z AM U D I O 10

and “an attorney ’s in-court a dmission of the NTA’s alleg ations m a d e o n behalf of h is alien client is treated no differently

”) (first and third alterations in orig inal) (internal citations and quotation marks o mitted). 1 F urthermore, even if the I J erred in f

ailing to advise him of his ability to apply for relief from removal, Z amudio suffered no prejudice because if he h ad obtained relief from removal f or his 1994 conviction under 8 U.S.C. § 1182(c)
, t h a t would have rendered him inelig ible for relief from removal for his 2000 c onviction under 8 U.S.C. § 1 229b(c)(6). Garcia-Jimenez v

. G onzales
, 488 F .3d 1082, 1086 (9th Cir. 2007).

Zamudio’s argument that he should not b e bound by Smith’s admission because it was the result o f i n e ffective assistance of coun sel is unavailing

. The standard for establishing ineffective assistance of counsel under the F ifth Amendment in immig ration c ases is hig her than the Six th Amendment standard set forth in Stric kland v. W a shington
, 466 U.S. 66 8 (1 984), so if Z amudio fails to meet the Strickland standard, h e c a nnot meet the hig her F ifth Amendment standard either. Torres-Chavez v. H older
, 567 F .3d 1096, 1100 (9th Cir. 2009).

Even under Strickland
, Za m udio’s counsel did not perform below an “objective stand ard of reasonableness” in failing to make leg al arguments that were not y et e stablished
at the t i m e of Z amudio’s removal p roceeding

. 466 U.S. at 688. Strickland does not require attorney s to make arguments based on cas es that have not y et been decided. See Clark v

.

1 W e g rant Z am

u dio ’ s m o tio n f

o r leav e to f

i le an o v e r sized citatio n of

su p p lem en tal auth o rities. Z am u d io ’ s citatio n to Medin a -La ra v. H o ld er , 7 7 1 F.3 d 1 1 0 6 (9 t h C i r

. 2 0 14 ), d o es n o t alter o u r an aly sis t

h at Z am u dio

w as b o un db y

h is atto rn ey ’ s ad mi ssio n

.U N I T E D S T A T E S V

. Z AM U D I O 11

Arnold
, 7 69 F .3d 711, 727 (9th Cir. 2014) (“[ W ] e do not

ex p ect counsel to be prescient a bout the d irection the law will take”) (citation and q u o t a tion marks omitted). The law in

ex istence at the time of Z amudio’s deportation hearing g ave Z amudio no hope of avoiding deportation. As a result, even if Z amudio were c orrect that the c harg ing and sentencing documents for his 2000 conviction were insufficient to show that h e had been c o nvicted of possessing a fed e r ally prohibited drug under U

nited States v. Vidal
, 504 F

. 3d 1072, 1087–88 (9th Cir. 2007) (en b a n c ), Smith cannot have been

ex p ected to mak e t hat argument seven y ears before o ur en banc court so held. Nor was Smith required to anticipate the Supreme Court’s ruling in I .N.S. v

. S t

. Cyr
, 533 U.S. 289 (2001), by arguin g t h at neither the I lleg al I mmig r ation Reform a nd Immig rant R e sponsibility Act of 1996 nor the Antiterrorism a

nd E ffective D eath Penalty Act of 1996 could be applied retroactively

. Z amudio’s counsel therefore did not perform deficiently either under S trickland or under the more

ex a c ting F ifth Amendment standard.

Z amudio has also failed to demonstrate prejudice. As the district court stated, Z amudio “does not now contend that the
statements of his attorney , made on h is behalf, were f actually incorrect, and d o es n ot p rovide any facts that would contradict the admissions.” At n o point has Z amudio cited “any authority for the p roposition that voluntarily conceding

a true fact can fundamentally undermine the fa i rness of a procee ding
, nor are we aware of any .” Torres-Chavez
, 567 F .3d at 1 1 0 2

. Under these circumstances, we will not h old that Z amudio was prejudiced by his coun s e l ’s challeng ed actions.U N I T E D S T A T E S V

. Z AM U D I O 12

(2)

Z amudio also disputes the district court’s decision not to provide a c onstructive k

nowledg e jury instruction with reg ard
to his statute of limitations theory

. A district court’s jury instructions are reviewed de n ovo a s to their accuracy and for abuse of discretion as to their formulation. U n i t ed States v

. Stinson
, 647 F .3d 1196, 1 2 15 (9th Cir. 2011). However, because w e hold as a matter of l a w that the statute o f limitations could not have run prior to the indictment on the facts o f this case, the spe c i fic standard of review d oes not chang e our analy sis.

Althoug h w e have c larified that the statute of limitations for “[ t] he offense of being found in the United States [beg ins
to run] when an a lien is discovered a n d identified by the immig ration authorities,” U nited Sta t es v. Hernandez
, 189 F .3d 785, 791 (9th Cir. 1999), we h a v e not addressed whether such discovery and identificati o n must be based on the g overnment’s a ctual knowledg e or can instead be proven under a constructive knowledg e theory

. See U nited States v

. Ortiz-Villegas
, 49 F .3d 1 435, 14 3 7 (9th Cir. 1 995) (discussing a constructive knowledg e standard in the c ontex t of the statute of limitations for section 1326 but declining to

re a c h t h e question). W e need not reach this question, however, b e c a u se we hold that the g overnment does not acquire knowledg e—actual or constructive—of an al i e n’s illeg al presence in the United States upon being presented with an inva l i d travel document. The statute of limitations therefore c a n n ot beg in to r un at that point because without such n o t i c e, the “found in” offense in section 1326 remains incomplete.U N I T E D S T A T E S V

. Z AM U D I O 13

Other c ircuits have adopted a similar rul e o n the theory that the statute of l i mitations is n ot desig ned to reward deception. F or ex ample, in United States v

. Ace ve d o , the Second Circuit a ddressed the question whether a de ported alien who reentered the United States using his real name a nd

s o m e v alid documents, but who presented an invalid g r een card, c ould a

rgue that the statute o f limitatio n s b e ga n to run when he presented such documentation to authorities upon reentry

. 2 29 F .3d 350, 353–54 (2d Cir. 2000). W e ag ree with the Second Circuit that since “a g r een card is a n accepted

means by which an alien may demonstrate the leg ality of his admission, a deportee’s presentation of a n invalid g reen card

. . . does not p lace the I

NS on notice that his presence in the United States [ is] illeg a l, even if the alien uses his real name.” Id. at 3 5 5 (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 Unite d States b y p r e s en t i ng an invalid g reen card but u ses his real name still deceives immig ration officials as to th e leg ality o f his presence”), abrogated o n other grounds by Nelson v. United States
, 555 U .S. 350 (2009); cf. United State s v

. Scott
, 447 F .3d 1365, 1370 (11th Cir. 2 006) (accepting the defendant’s arg

ument that the statute of limitations beg an to

run at his initial i n t e r v iew w ith immig r ation officials g iven that he “ was completely honest” wi th immig ration officials during that interview
, not o nly g iving them “his r eal name, the alias he was then o perating under, [ and] his correct personal information,” but also “confessing his illeg al reentry and p resence in the United States, detailing the prior date o f his deportation, a

nd detailing how h e i l l eg ally r eentered the country”).

In this c ase, according to Z amudio’s own witness, his 2001 entry involved the presentation of an invalid g reen cardU N I T E D S T A T E S V

. Z AM U D I O 14

as if it h ad been a valid travel document. Z amudio’s argument that the presentation of h is g reen card g ave immig r ation authorities knowledg e of h is illeg al presence in the United States thus directly contradicts the only possible purpose for
pre s e nting the g r een c ard in that contex t: to convince immig ration authorities that he was entering the United States leg ally

.

W e hold that Z amudio’s “found in” o ffense under section 13 2 6 w as not complete—and therefore the statute o f limitations did not beg in to run—when Z amudio reentered in 2001 because h is presentation of an invalid g reen c ard as if it

were valid did not place authorities on notice that Z amudio’s
presence in the United States wou l d be illeg al. Z amudio’s successful use of “specious documentation t h at conceal[ ed] the illeg ality of his presence” in crossing back into the United States should not e mpower him subsequently to avoid prosecution on the theory that the g o vernment should have known h e was entering the United States il leg ally

. Acevedo
, 229 F .3d at 353 (alteration in orig inal), quoting United States v. Rivera-Ventura
, 72 F .3d 277, 281 (2d Cir.1995); G ordon
, 513 F

. 3d at 6 68 (Ripple, J
., concurring ) (“I do not believe that the Government can be charg ed with constructive notice when [ the d efendant] presented himself at the border w ith an invalid, althoug h au t hentic, g r een card. Indeed, it seems to

me that his actions at that point can be char a c t eriz ed a s affirmatively

misleading the Government.”).

Z amudio’s citation to United States v. G o m ez , 38 F .3d 1031 ( 8th Cir. 1 9 9 4 )
, d o es n ot help him. In Gomez
, the defendant v oluntarily filed immig ration papers w i th I NS officials; those papers “provided virtually no truth f ul biog raphical data,” but did contain a set of valid fing erprints. Id. at 1 0 33, 1037. B ecause t h o s e fing erprints p rovided aU N I T E D S T A T E S V

. Z AM U D I O 15

means by which the I

N S c o u l d have determined, in the

ex e r cise of dilig ence, Gomez ’s status a s a deported alien, the
court held that the “ f

ound in” violation acc r

u e d—for purposes of c o mmencin g the statute of limitations—at the earliest point
at which a normal f

ing e rprint p rocessing request would have revealed G omez ’s illeg al status. Id. at 1 037–38. The c o u rt ultimately concluded that Gomez was i n d i c t ed within the statutory period. Id. at 1038.

Even if we were to accept thi s o u t of circuit case, which

we need not, it would not chang e our position. In Gomez
, the alien provided I

NS with both the information a nd the means t o discover his immig ration status. In this case, by co n t r a s t , Z amudio d id not leave any identifying information o r documents with author i t i e s ; instead, he retrieved h is invalid
g reen card and took it with him when he left the port of entry

. This left immig ration officials unable—even in t h e e x ercise of dilig e nce—to identify

him, to ascertain that his entry was illeg al, or to locate him for further investig a t i o n

. Compare Gomez
, 38 F

. 3 d at 1037 ( “ A s of May 3, the INS was in possession o f a

n I -687 which contain ed much falsified data, but which also contained Gomez ’s fing erprints, a means b y which t h e I

NS could d etermine Gomez ’s true identity a nd
status a s a deported alien;” as a r esult, without an imputation of constructive knowledg e to the g overnment, “ G omez

. . . would be requ i r ed to live in perpetual fear of prosecution.” (emphasis added)).

A l t h o u g h there may b e g ood reason to think that o ur holding above reg ardingthe use of invalid travel documents would have led us to follow different reasoning than that followed by the Eig h th Circuit i n G omez , we would have ultimately reached the same conclusion. On the facts of this
case, we need not reach the q uestion of whether constructiveU N I T E D S T A T E S V

. Z AM U D I O 16

knowledg e can or should be imputed to the g overnment when

a defendant leaves accurate information with the g overnment from which it c ould be determined that the defendant is in the country illeg a lly

. Acco r d i n gly
, we hold that k nowledg e o f Z amudio’s status cannot be imputed to the g overnment h ere.
(3)

Z amudio also argues that the district c ourt e rred by failing
to g rant h is motion for acquitta l b ec ause no reasonable jury could have found that Z amudio failed to meet h i s b urden o f proving his statute of limitations defense, g iven the evidence. Our conclusions above with reg ar d to Z amudio’s statute o f limitations defense foreclose this arg ument.

AF F IRMED.