FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50129 Plaintiff-Appellee,

D.C. No.

v.  CR-04-01371-DMS

LUIS DIAZ-LUEVANO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Submitted February 7, 2006*

Vacated March 1, 2006

Resubmitted July 11, 2007

Pasadena, California

Filed July 18, 2007

Before: Alex Kozinski, Stephen S. Trott, and Carlos T. Bea,

Circuit Judges.

Per Curiam Opinion

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

8723
COUNSEL

Marisa L. Dersey & Zandra L. Lopez, Federal Defenders of

San Diego, Inc., San Diego, California, for the defendantappellant. 

Carol C. Lam, Roger W. Haines, Jr., Garrett M. Heenan &

Mary D. Fan, United States Attorney, San Diego, California,

for the plaintiff-appellee. 

OPINION

PER CURIAM: 

Appellant Luis Diaz-Luevano appeals his conviction and

sentence for illegal reentry in violation of 8 U.S.C. § 1326.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

We clarify that our holding in Morales-Izquierdo v. Gonzales,

486 F.3d 484 (9th Cir. 2007) (en banc), does not overrule

United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir.

2003). Prior physical removal remains one of the bases for

sentence enhancement under 8 U.S.C. § 1326 and United

States Sentencing Guideline (“U.S.S.G.”) § 2L1.2. 

I.

Appellant, a Mexican national entered the United States

without permission. He was deported and taken out of this

country for the first time in 1996. He then illegally returned

to the United States a second time. Appellant’s illegal presence came to immigration officials’ attention in 1998 when he

was convicted of assault with intent to commit felony rape, in

violation of California Penal Code § 220. In 1999, an immigration officer reinstated Appellant’s prior deportation order,

1The rest of Appellant’s arguments, which are specific to his case, are

disposed of in the accompanying memorandum disposition. 

UNITED STATES v. DIAZ-LUEVANO 8725
and in 2000, Appellant was fingerprinted, deported, and again

taken out of this country. 

Appellant was arrested in 2004 for illegally reentering the

United States a third time. A jury found Appellant had illegally reentered the country after being removed a second time

in 2000. Based on this finding, the jury convicted Appellant

of being found in this country after being deported from it, in

violation of 8 U.S.C. § 1326(a). 

Section 1326(a) governs “any alien who has been . . .

deported, or removed . . . and thereafter . . . is at any time

found in, the United States.” 8 U.S.C. § 1326(a). If the “removal was subsequent to a conviction for commission of an

aggravated felony,” the alien may be fined and imprisoned for

up to twenty years. 8 U.S.C. § 1326(b)(2). Additionally,

U.S.S.G. § 2L1.2 provides that if a defendant previously was

deported, or unlawfully remained in the United States after a

felony conviction that is a crime of violence, the judge may

increase the defendant’s sentence by 16 levels. U.S.S.G.

§ 2L1.2 (2004). 

At the sentencing hearing the trial judge: (1) found the base

offense level 8, under U.S.S.G. § 2L1.2 for Appellant’s violation of 8 U.S.C. § 1326(a); (2) adjusted the sentence upward

16 levels pursuant to U.S.S.G. § 2L1.2 because Appellant’s

physical deportation in 2000 occurred after his 1998 conviction for California Penal Code § 220, assault with intent to

commit felony rape; and (3) adjusted the sentence downward

2 levels for acceptance of responsibility. Based on the information in the Pre-Sentencing Report, this qualified Appellant

for an offense level of 22, with a criminal history score of 11

and a criminal history category of V. The resulting Guidelines

calculation, under the now advisory Sentencing Guidelines,

was 77-96 months. The judge sentenced Appellant to 86

months’ imprisonment and 3 years’ supervised release.

Appellant then appealed his conviction and sentence.

8726 UNITED STATES v. DIAZ-LUEVANO
II.

Appellant claims the district court decision enhancing his

sentence under 8 U.S.C. § 1326 and U.S.S.G. § 2L1.2 based

on the reinstated deportation order2 was an error because

Morales-Izquierdo held that a reinstated removal order is not

a species of removal. Appellant incorrectly asserts that

Morales-Izquierdo rejected the analysis in Luna-Madellaga.

[1] What constitutes a “removal” affects the severity of

criminal reentry penalties. The maximum sentence for illegal

reentry increases significantly if the alien was previously

removed after having been convicted of certain crimes. See 8

U.S.C. § 1326(b). A conviction for unlawfully entering or

remaining in the United States will be enhanced “[i]f the

defendant previously was deported, or unlawfully remained in

the United States, after” a conviction for certain crimes.

U.S.S.G. § 2L1.2(b)(1); see also id. § 2L1.2 n.1(A)(i) (“A

defendant shall be considered to be deported after a conviction if the defendant has been removed or has departed the

United States while an order of exclusion, deportation, or

removal was outstanding.”). 

In Morales-Izquierdo, we held that reinstatement of a prior

removal is “not a species of removal,” but a separate procedure, and thus the agency is not required to provide a hearing

before an immigration judge. Morales-Izquierdo, 486 F.3d at

490-91. Appellant argues this means that the reinstatement of

a prior order of removal does not constitute a “removal” for

criminal immigration purposes because it is not a species of

2Morales-Izquierdo also involved a reinstated deportation order.

Morales-Izquierdo, 486 F.3d at 488 n.3. Morales-Izquierdo’s principle

applies equally to reinstatements of deportation and removal orders. The

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”) eliminated the previous legal distinction between deportation,

removal, and exclusion, merging all of them into a broader category titled

“removal.” See United States v. Lopez-Gonzales, 183 F.3d 933, 934-35

(9th Cir. 1999). 

UNITED STATES v. DIAZ-LUEVANO 8727
removal. This is inaccurate. In United States v. LunaMadellaga, 315 F.3d 1224 (9th Cir. 2003), we held that the

alien’s physical removal is what matters for purposes of criminal sanctions, regardless of the procedure employed; removals pursuant to reinstated orders of removal thus count for

purposes of 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2:

Section 1326 speaks only of “removal.” All that the

statute requires is that the alien reenter the United

States illegally after having been removed subsequent to an aggravated felony conviction. It plainly

turns on the alien’s physical removal—not the order

of removal. Similarly, the plain language of [8

U.S.C.] § 1231(a)(5) contemplates a second physical

removal under a reinstated prior order. As it provides, a reentering alien “shall be removed under the

prior order at any time after the reentry.” Here,

Luna-Madellaga was physically removed twice, once

in 1995, and again in 1999. That the 1999 removal

was accomplished by reinstatement of his 1995

removal order is of no consequence. Therefore, he is

subject to the enhanced penalty prescribed by

§ 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A). 

Id. at 1226 (footnote omitted).3

[2] Luna-Madellaga held that what matters for criminal

reentry purposes is the date of “the alien’s physical removal—

3Luna-Madellaga involved a similar challenge. Luna-Madellaga was

ordered removed in 1995, reentered illegally, was convicted of a felony

crime of violence in 1996, and was removed again based on reinstatement

of his original removal order. Luna-Madellaga returned, and was then convicted for unlawful re-entry of a deported alien in violation of 8 U.S.C.

§ 1326(a). The court affirmed a sentence enhanced for “ ‘removal [that]

was subsequent to a conviction for commission of an aggravated felony,’

where the removal that followed such a conviction was accomplished

through reinstatement of a prior removal order pursuant to 8 U.S.C.

§ 1231(a)(5).” Luna-Madellaga, 315 F.3d at 1225. 

8728 UNITED STATES v. DIAZ-LUEVANO
not the order of removal.” Id. Morales-Izquierdo does not

deal with whether reinstatement of a removal order includes

a physical removal, which it does. Luna-Madellaga is still

good law. 

[3] Sentence enhancement based on reinstated removal

after a crime of violence is not contrary to MoralesIzquierdo’s statement that “[t]he reinstatement order imposes

no civil or criminal penalties.” Morales-Izquierdo, 486 F.3d

at 498. It is the alien’s illegal reentry that U.S.S.G. § 2L1.2

punishes him for—not the reinstatement. Accordingly, the

district court correctly enhanced Appellant’s sentence. 

AFFIRMED.

UNITED STATES v. DIAZ-LUEVANO 8729