NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

EDUARDO DUFFY, 

Defendant-Appellant.

No. 17-50414 

D.C. No. 

3:16-cr-02358-MMA-1 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

EDUARDO DUFFY, AKA Eduardo DuffyCarrasco, 

Defendant-Appellant.

No. 17-50415 

D.C. No. 

3:12-cr-03690-MMA-1 

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Submitted February 12, 2019**

 

* 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).

FILED

FEB 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Pasadena, California

Before: D.W. NELSON and CALLAHAN, Circuit Judges, and KORMAN,***

District Judge.

Eduardo Duffy, a citizen of Mexico, appeals his conviction, following a jury 

trial, for illegal reentry after deportation in violation of 8 U.S.C. § 1326 and the 

revocation of his supervised release based on the illegal reentry conviction. We 

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Duffy argues that his underlying removal order based on his California Penal 

Code (CPC) § 211 conviction was invalid because CPC § 211 is not an aggravated 

felony under 8 U.S.C. § 1101(a)(43). This argument is foreclosed by our recent 

decision in United States v. Martinez-Hernandez, No. 16-50423, 2019 WL 138167 

(9th Cir. Jan. 9, 2019), which held that CPC § 211 is an aggravated felony because 

it qualifies as a categorical generic theft offense under 8 U.S.C. § 1101(a)(43)(G). 

II

Duffy argues that his illegal reentry conviction was invalid because, 

following Morales-Santana, he was “convicted under a law classifying on an 

impermissible basis.” Sessions v. Morales-Santana, — U.S. — , 137 S. Ct. 1678, 

1699 n.24 (2017). Duffy does not argue that the provisions declared 

 

*** The Honorable Edward R. Korman, United States District Judge for 

the Eastern District of New York, sitting by designation.
3 

unconstitutional in Morales-Santana apply to him; rather, he sets forth a facial 

equal protection challenge to 8 U.S.C. § 1326 under the Fifth Amendment’s Due 

Process Clause. 

“We review questions regarding the constitutionality of a statute de novo.” 

See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).

In Morales-Santana, the Supreme Court held that “[t]he gender-based 

distinction infecting §§ 1401(a)(7) and 1409(a) and (c) . . . violates the equal 

protection principle” implicit in the Fifth Amendment’s Due Process Clause. 

Morales-Santana, 137 S. Ct. at 1700–01. Rather than striking the entire statute, 

the Supreme Court struck down only the one-year physical-presence exception for 

unwed U.S.-citizen mothers and held that, going forward, 8 U.S.C. § 1401(a)(7)’s 

five-year requirement for unwed U.S.-citizen fathers “should apply, prospectively, 

to children born to unwed U.S.-citizen mothers.” Id. at 1701. Duffy’s facial equal 

protection challenge rests upon the gender-based distinction in §§ 1401(a)(7) and 

1409(a) and (c) held invalid by Morales-Santana. 

The severability clause in the Immigration and Nationality Act (“INA”)

dictates that the remainder of 8 U.S.C. §§ 1401 and 1409 was not affected by 

Morales-Santana. See 8 U.S.C. § 1101 note (“If any provision of this title . . . is 

held invalid, the remainder of the title . . . shall not be affected thereby.”); see also

I.N.S. v. Chadha, 462 U.S. 919, 931–32 (1993) (declaring the veto clause of 8 
4 

U.S.C. § 1254(c)(2) unconstitutional, but holding that the severability clause in 8 

U.S.C. § 1101 “plainly authorized the presumption” that the remainder of the INA 

stands. Duffy was properly convicted under 8 U.S.C. § 1326, which incorporates 

definitions of “alien” and “citizen” that were not affected by Morales-Santana.

Thus, Duffy was not “convicted under a law classifying on an impermissible 

basis.” Cf. Morales-Santana, 137 S. Ct. at 1699 n.24.

III

Duffy, who was born out of wedlock, argues that § 1409(a)(1)’s requirement 

that “a blood relationship between the person and the father [be] established by 

clear and convincing evidence” violates the equal protection principle because the 

same requirement is not imposed upon children who were born in wedlock. 

We need not resolve Duffy’s constitutional challenge to § 1409(a)(1). Even 

if we were to agree with his argument, the remedy would be to sever subsection 1 

from the requirements of § 1409(a) pursuant to the INA’s severability clause. 

However, Duffy would still have to meet the remaining requirements of § 1409(a),

which includes that his father “agreed in writing to provide financial support for 

[Duffy] until [Duffy] reaches the age of 18 years.” 8 U.S.C. § 1409(a)(3). Duffy 

has not argued or pointed to evidence in the record showing that he is able to meet 

the remaining requirements of § 1409(a). As such, this argument is waived. See 

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not 
5 

raised by a party in its opening brief are deemed waived.”); Fed. R. App. P. 

28(a)(8)(A) (requiring the argument to contain “appellant’s contentions and the 

reasons for them, with citations to the authorities and parts of the record on which 

the appellant relies”). Even if Duffy prevailed on his equal protection claim

regarding subsection 1, he would not be entitled to relief.

We affirm Duffy’s illegal reentry conviction and the subsequent revocation 

of supervised release.

AFFIRMED.