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 ALM E R

I N Z AM UD I O , AKA Hermilo Z amudio Palmerin,

Defendant-Appellant

. N o. 13-10322

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

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

B efore: J . Clifford W allace, Mary M. Schroeder, and J ohn B . Owens, Circuit J udg es.
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 p anel affirme d a c o nviction 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 h i s burden in collaterally attacking his underlying deportation proceeding

. The panel observed that kidnapping in violation o f California Penal Code § 207(a) is categ orically a crime of violence for which the defendant was removable based on his 1 9 9 4 c onviction;

a nd that the defendant’s attorney ’s a dmission that his 200 0 conviction was for methamphetamine p ossession and that the d e f e n d a nt w a s t h e r e f o r e removable satisfied the g overnment’ s burden reg arding r emovability

. The panel held th a t e v e n if the immig ration judg e e rred in f ailing to advise the defendant of his ability to apply for relief from removal, the d efendant suffered no prejudice because if he had o b t a i ned relief from removal for his 1 994 c onviction under 8 U.S.C. § 1 1 8 2 ( c ), that would have ren d e red h im inelig ible for relief from r e m o v al for h is 2000 conviction under 8 U .S.C. § 1229b(c)(6). The panel rejected the d efendant’s contention that his attorney ’s admis s i o n r eg a rding the 2000 conviction was the result of ineffective assistance of counsel.

Rejecting the defendant’s contention that the district cour t erred in failing to instruct the jury on a constructiv e

* 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

knowledg e theory for the defendant’s s t a tute of limitations defense, the panel held that the defendant’s “found in” offense under § 1326 w a s n o t complete – and therefore the
statute of limitations did n ot beg in to run – when the d efendant reentered in 2001 because his presentation o f a n invalid g reen card as if it were valid did not place authorities

on notice that the d efendant’s presence in the U n i t e d States would be illeg al.

COUNSEL

Erick L . Guz man (arg

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

Susan B

. Gray
, A ssistant United States Att o rn e y (arg ued), Melinda Haag
, United States Attorney
, B arbara J

. V alliere, Chief, Appellate Division, San F rancisco, Ca l i f o rnia, for Plaintiff-Appellee.

OP INION

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

Z amudio was convicted of vi o lating 8 U.S.C. § 1326, which prohibits a d eported alien from being “f o u n d i n” the United States after reentering without permission. Z amudio

now appeals from h is c onviction, arguing that the underly ing removal proceeding v iolated his due process rig hts, that the district c ourt erred in failing to instruct the jury on a constructive knowledg e theory for Z amudio’s s tatute o f limitations def

e nse, and that the evidence presented to the jury p roved h is statute o f l i m itations defense as a matter o fU N I T E D S T A T E S V

. Z AM U D I O 4

law. W e have jurisdiction pursuant to 28 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 subsequent ly became a leg al
perman e n t r e s ident by virtue of his marriag e to a United States citiz en. In 1994 Z amudio pleaded g uilty to kidnapping in violation of California Penal Code § 2 07(a) and was

se n t e n ced to three y ears 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 methamphetamine pursu a n t to California Health and Safety Code § 11377 ( a) and with misdemeanor p ossession 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 r ation 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 Smi th w as retained to represent Z amudio. Smith filed a motion for chang e of venue, in which he requested permission to a ppear by telephone. The motion

was d e n ied, and another immig r ation judg e (I J ) later held a removal hearing

. Z amudio was present, a long with a SpanishU N I T E D S T A T E S V

. Z AM U D I O 5

interpreter, but Smi t h w a s not. The I J contacted Smith b y telephone and proceeded with the hearing

.

T h e I J asked Smith if he was r eady to proceed with t h e case, and Smith said h e had not seen the NTA, b ut that if the I J would read it to him h e c o uld respond on behalf of his cli en t

. S mith admitted that Z amudio had no claim to U.S.

c i t i z e n s h i p a n d t h a t Z a m u d i o w a s c o n v i c t ed o f methamphetamine possession in 2000 and of kidnap p i n g in 1994; he the n conceded that Z amudio was deportable based

on each of his convictions. 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 dis trict court that she traveled to Mex ico several months a fter Z amudio’s removal t o bring Z amudio back to the United States. She met Z amudio in Tijuana and broug ht him his leg al permanent resident card, or gr e e n 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, h er birth certificate, and Z amudio’s invalid g reen card. The ag e nt looked at the g reen card, looked at Z amudio, and returned the documents. Then, a fter asking whether there was anyone else in the vehicle and checking the v ehicle’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 the United S tates, this time while he was incarcerated at the Sonoma County J ail. He was subsequently indicted for the instant offense.U N I T E D S T A T E S V

. Z AM U D I O 6

Z amudio moved to dismiss the indictment, arguing th at t h e I J ’s failure to advise Z amudio that he was elig ible t o apply for relief from r emoval r endered his remo v a l 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 h e received ineffective assistance o f counsel because Smith erred in c onced ing that Z amudio’s drug conviction was for methamphetamine and Smith never

came to visit Z amudio and never e x pla i n e d what was happening

.

The district court d enied Z amudio’s motion to dismis s , concluding that Z amudio could not have successf u l l y contested removability based on either his 1 9 9 4 conviction for kidnapping or his 2000 conviction for d ru g p ossession. The court reasoned that the 1994 kidnapping conviction rendered Z amudio re m ovable because kidnapping was considered a crime of violence at the time of Z amudio’s removal hearing
, and th e 2 0 0 0 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 district court further concluded that any f a ilure to advise Z amudio of his elig ibility for relief from removal was not prejudicial because if Z amudio h ad been g ranted relief f

rom removal f

o r his 1994 conviction, he would then have been inelig ible for relief from removal for his 2000 conviction.

After a two-day trial, the jury was un ab l e t o reach a verdict. On r e-trial, Z amudio pursued a statute of limitations defense, arguing t h at the five-year statute of limitations for 8 U.S.C. § 1326 beg an to run in 2 001 when his identification

was presented to a b order a g ent while passing throug h a port

o f entry into the United States, and therefore the ch a r geU N I T E D S T A T E S V

. Z AM U D I O 7

ag ainst him was already time-barred when he was indicted in 2012. Over the g overn m e nt’s o bjection, the district court allowed testimony supporting this defense from Za m udio’s

s econd w ife r eg arding their crossing the border in t o t h e United States during the 2001 Memorial D ay weekend. However, the district c ourt ulti m at ely denied Z amudio’s renewed motion to acquit at the close of evidence b a s e d on his statute of limitations defense, and instead, over Z amudio’s objections, i n s t ru c ted the jury with reg ard to the issue o f Z amudio’s reentry and the g overnment’s alleg ed 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 U n ited States by presenting a n invalid tra v el doc u m e n t to border authorities, there is not notice t o the f

ederal authorities that his
presence in t h e United States is illeg al. In such a circumstance, the statute of limitations does not beg in to ru n 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) denying his motion to dismiss the indictment because the underlying deportation proceeding was fundamentally unfair, (2) omitting a jury instruction o n constructive k n owledg e with reg ard to his statute of limitations defense, a nd (3) d enying his motion for acqu i t t a l a t the close of evidence based on his statute of limitations defense.U N I T E D S T A T E S V

. Z AM U D I O 8

I I

. (1)

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

. United States v. Gonzalez-Villalobos
, 724 F .3d 1125, 1129 (9th Cir. 2013). To challeng e the v a lidity of the underly ing deportation order in a criminal proceeding u n d e r 8 U.S.C. § 1326, the d e f endant must meet three requirements by showing th at (1) he ex h austed any available administrative r emedies for relief a g ainst the order, (2) the d e p o rtation proceeding s denied him the opportunity f or judicial review, and (3 ) the entry of the order was “fundam en t a lly unfair.” 8 U .S.C. § 1326(d). Under the third requirem e n t, the order is “fundamentally unfair” only if the defendant shows that his du e p r o c ess rig hts were v iolated 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 f a i led to meet his burden in collaterally attacking h is underl y i n g d e p o r tation proceeding

. T he district court c orrectly reasoned 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-Hernand e z v

. H older
, 697 F .3d 1125, 1127 (9th Cir. 2012). Z amudio’s atto rn e y ’s admission that the 2000 c o nv i c t i o n w a s f o r methamphetamine possession and t h a t Z amudio w as therefore r emovableU N I T E D S T A T E S V

. Z AM U D I O 9

“relieved the g overnment of the oblig ation to present any

e vidence on the factual question of the nature of the dru g offense,” such that “the g overnment’s burden [ reg arding removability ] [ wa] s satisfied.” Perez-Mejia v. Hol de r , 663 F .3d 403, 414–15 ( 9 t h Cir. 2011); see also Santiago-Rodriguez v. Hol d er , 6 57 F .3d 820, 829 ( 9 th Cir. 2011) (an alien’s a d mission 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 o n th[ at] factual question,” and “an attorney ’s in-court a dmission of the NTA’s alleg ations made on behalf o f h i s alien client is treated no differently

”) (first and third alterations in orig inal) (internal citations and quotation marks omitted). 1 F urthermore, even if the I J erred in failing to a dvise him of his ability to a pply for relief from removal, Z amudio suffered no prejudice because if he had obtained relief from removal f or his 1994 conviction under 8 U.S.C. § 1182(c), that wo u l d h a ve rendered him inelig ible for relief from removal for h is 2000 conviction under 8 U.S.C. § 1 229b(c)(6). Garcia-J i m enez v

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

Z amudi o ’s argument that he should not be bound b y Smith’s admission because it was th e r e s u lt of ineffective assistance of counsel is unavailing

. The stand ard 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 Strickland v. W a shington
, 466 U. S

. 6 68 (1984), so if Z amudio fails to meet the Strickland standar d
, he cannot meet the hig her F ifth

1 W e g ran t 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 Med in 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 m i ssio n

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

. Z AM U D I O 10

Amendment standard either. Torres-Chavez v. H older
, 567 F .3d 1096, 1100 (9th Cir. 2009).

Even under Strickland
, Z am u d i o ’s counsel did not perform below an “objective standard of reasonablenes s” in failing to make leg al arguments that were not y et e stablished
at t h e time of Z amudio’s removal p roceeding

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

. Arnold
, 769 F .3d 711, 727 (9th Cir. 2014) (“[ W ] e do n o t

ex p ect counsel to be prescient about the d irection the law will take”) (citation and quotation m ar k s 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 tha t the charg ing and sentencing documents for his 2000 conviction were insufficient to show that h e had been c o nvicted of possessing a federally prohibited drug under U

nited States v. Vidal
, 504 F

. 3d 1072, 1087–88 (9th Cir. 2007) (en banc), Smi t h c annot have been

ex p ected to make that argument seven y ears b e fore o ur en banc court so held. Nor was Smith required to anticipate the Supreme Court’s ruling in I .N.S. v. St. C

y r , 5 3 3 U.S. 289 (2001), b y arguing that neither the I lleg al I mmig r ation Reform a nd I m mig rant Responsibility Act of 1996 nor the Antiterrorism a

nd E ffective Death Penalty Act of 1996 could be applied retroactively

. Z amudio’s counsel therefore did not perform deficiently either under Strickland 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 citedU N I T E D S T A T E S V

. Z AM U D I O 11

“any authority for the p roposition that voluntarily conceding

a true fact can funda m e ntally undermine the fairness of a proceeding
, nor are we a ware of any

. ” Torres-Chavez
, 567 F .3d at 1102. Under the s e circumstances, we will not hold that Z amudio was prejudiced b y his counsel’s challeng ed actions.

(2)

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

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

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

. Stinson
, 647 F .3d 1 1 9 6, 1 215 (9th Cir. 2011). However, because w e hold as a matte r o f law that the statute o f limitations could not have run prior to the indictment on the facts o f this case, the specific standard of review d o es not chang e our analy sis.

Althoug h w e have c larified that the statute of limitations for “[ t] he offense of being f ound in the United States [beg ins
to run] when an a lien is discovered and id e n t i f ied by the immig ration authorities,” U nited States v. Hern andez
, 1 8 9 F. 3 d 785, 791 (9th Cir. 1999), we have not addressed whether such discovery and ident i fication must be based on the g overnment’s actual knowledg e or can instead be proven under a constru ctive knowledg e theory

. See U nited States v

. Ortiz-Villegas
, 49 F .3d 1 435, 1437 (9 t h 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 reach the qu e s t i o n ). W e need not reach this question, however, b ecause we h o l d that the g overnment does not acquire knowledg e—actual or constructive—of a n alien’sU N I T E D S T A T E S V

. Z AM U D I O 12

illeg al presence in the United States upon being p resente d with an invalid travel document. T h e statute of limitations therefore cannot beg in to run a t t h a t point because without such notice, the “found in” o ff e n se in section 1326 remains incomplete.

Oth e r circuits have adopted a similar rule on the theory that the statute of limitat i ons is n ot desig ned to reward deception

. Fo r ex ample, in United S tates v. Acevedo
, the Second Circu it addressed the question whether a deported alien who reentered the United States using his real name a nd

some valid documen t s , b u t who presented an invalid g reen

c a rd, could argue that the statute of limitations beg an t o ru n 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 car d is an 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 al, e v en if the alien uses his real name.” Id. at 355 (internal citations and qu o t a tion marks omitted);

see also United States v. Gordon
, 513 F .3d 659, 663 (7th Cir. 200 8 ) ( “A deportee who reenters the United States b y presenting an inval i d gr ee n c ard b ut uses his real name still d eceives immig ration o fficials as to the leg ality o f his presence”), abrogated on other grounds by Nelson v. United States
, 5 55 U.S. 350 (2009); cf. United States 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 interview with immi gr a t i o n officials g iven that he “ was completely hon e st” with immig ration officials dur ing 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 reentryU N I T E D S T A T E S V

. Z AM U D I O 13

and p resence in the United States, detailing the prior date o f his deportation, a

nd detailing how h e illeg ally ree n t ered the country”).

In this c ase, according to Z amudio’s own witness, his 2001 entry involved the presentation of a n invalid g reen card

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 p ossible purpose for presenting the g reen card in that contex t: to c onvince 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 1326 was not complete—and therefore the st a t u t e o f limitations d id not beg in to run—when Z amudio reentered in 2001 b ecause his presentation of an invalid g reen c ard as if it

were valid did not p lace authorities on notice that Z amudio’s
presence in the United States would be i l leg al. Z amudio’s successful use of “specious documenta t ion that 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 overnme nt should have known h e was entering th e United States illeg 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 668 (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 with an invalid, althoug h authentic, g reen card. Indeed
, i t seems to

me that his actions at that point can be characteri z e d a s affirmatively

misleading the Government.”).U N I T E D S T A T E S V

. Z AM U D I O 14

Za m u dio’s citation to United States v. Gomez
, 38 F

. 3 d 1031 ( 8th Cir. 1994), d oes not h elp h i m

. I n Gomez
, the defendant v olunta r i ly filed immig ration papers with I NS officials; those paper s “ p r ovided virtually no truthful biog raphical data,” but did contain a set of valid fing erprints. I d

. at 1033, 1037. B ecause those fing erprints p rovided a

means by which the I

NS could have d e t e rm i ned, in the

ex e r cise of d ilig ence, Gomez ’s status as a deported alien, the

co u r t h eld that the “found in” violation accrued—for purposes of c o mmencing the st atute of limitations—at the earliest point
at which a normal fing erprint processing request would have

reve a led Gomez ’s illeg al status. Id. at 1037–38. Even if we

were to accept this out of circuit case, which we need not, it would not chang e o ur position. In G omez , the alien provided I NS with both the information and the means to discover his immig ration status. In this c a s e , b y c ontrast, Z amudio’s presentation of his invalid g reen c ard at the border did n o t provide the authorities w ith either the i n formation or the

means with w hich to discover his immig ration status. B ecause Z amudio’s presentation of his invalid g r een card did
not enable the g overnment to a scertain t h a t h i s entry was illeg al, e ven in the ex ercise of dilig ence, know l e dg e o f Z amudio’s status cannot be imputed to the g overnment, reg ardless of whether a constructive knowledg e theory applies.

(3)

Z amudio also argues that the district court erred by failing
to g rant h is motion for acquittal because no reasona b l e j ury could have found that Z amud io failed to meet his b urden o fU N I T E D S T A T E S V

. Z AM U D I O 15

proving his statute of limitations defense, g iven the evidence. Our conclusions above with reg ard to Z amudio’s statute o f limitations defense foreclose this arg ument.

AF F IRMED.