United States v. Gambino-Ruiz

91 F.4th 981

UNITED STATES of America, Plaintiff-Appellee, v. Jose GAMBINO-RUIZ, Defendant-Appellant.

No. 21-50303

No. 21-50305

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 15, 2023 Pasadena, California

Filed January 24, 2024

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding, D.C. Nos. 3:20-cr-03124-LAB-1, 3:20-cr-10144-LAB-1

Kara Hartzler (argued), Federal Defenders of San Diego Inc, San Diego, California, for Defendant-Appellant.

Zachary J. Howe (argued), Lyndzie Marie Carter, and Meghan Heesch, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, United States Attorney; United States Department of Justice, San Diego, California, for Plaintiff-Appellee.

Charles Roth, National Immigrant Justice Center, Chicago, Illinois, for Amici Curiae Asian Pacific Institute on Gender-Based Violence, Asista Immigration Assistance, National Coalition Against Domestic Violence, National Domestic Violence Hotline, National Immigrant Justice Center, and Tahirh Justice Center.

Before: Barrington D. Parker, Jr.,^* Jay S. Bybee, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Bybee;

Concurrence by Judge Lee

OPINION

BYBEE, J., Circuit Judge:

Defendant-Appellant José Gambino-Ruiz was convicted of illegal reentry under 8 U.S.C. § 1326. He raises two issues in this appeal. First, Gambino-Ruiz argues that the removal order that served as the basis for that charge—an expedited removal—was improper under the Immigration and Nationality Act ("INA"). Second, Gambino-Ruiz appeals the district court's denial of a downward sentencing adjustment for acceptance of responsibility, on the theory that the district judge considered impermissible factors in deciding whether to grant that adjustment. We affirm Gambino-Ruiz's conviction and his sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gambino-Ruiz is a native and citizen of Mexico who first entered the United States sometime near the beginning of March 2013 by illegally crossing the southern border into Arizona, not at a port of entry and without valid documents permitting his admission. Shortly after his arrival, border patrol agents found him near the border. He subsequently confessed that he was an alien not legally admitted to the United States. The immigration officer reviewing his case determined that he was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for lacking a valid entry document at the time of his application for admission. Pursuant to 8 U.S.C. § 1225(b)(1)(A)(i), the Department of Homeland Security thus issued an order of expedited removal, and Gambino-Ruiz was deported to Mexico shortly thereafter. This process repeated itself just two months later, when Gambino-Ruiz again entered the United States by illegally crossing the border, whereupon he was arrested and again deported following expedited removal proceedings.

In September 2020, Gambino-Ruiz once again entered the United States without admission, this time through a mountainous region along the border between Mexico and California. When Border Patrol agents apprehended him six miles from the border, he admitted that he had entered illegally. The United States Attorney's Office then filed an Information with the federal District Court for the Southern District of California, charging Gambino-Ruiz with illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b).

Prior to trial, Gambino-Ruiz moved for dismissal of the charge. He argued that the government could not charge him as an alien previously removed because his expedited removal in 2013 was invalid under this Court's decision in Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc).¹ The government opposed this motion, submitting that the Attorney General has statutory discretion to apply expedited removal to certain aliens found illegally entering the country at the border. The district court denied Gambino-Ruiz's motion to dismiss. Gambino-Ruiz also moved to suppress his admissions to the Border Patrol agents who apprehended him—asserting that they had been taken in violation of his Miranda rights—and the district court likewise denied this motion after a hearing on the issue. The case then proceeded to trial, which lasted one day. Gambino-Ruiz called no witnesses and submitted no exhibits. The jury found him guilty.

At sentencing, Gambino-Ruiz requested a downward sentencing adjustment based on his acceptance of responsibility under United States Sentencing Guideline § 3E1.1. The district court denied his request, citing the facts that he had contested his guilt at trial; had shown no contrition; and had elected to go to trial despite the existence of less burdensome alternative proceedings that would have allowed him to preserve legal challenges to his conviction. The court listened as Gambino-Ruiz's counsel enumerated factors that weighed in his favor, such as his initial admissions, his stipulated fingerprints, and the short duration of the trial, but the court did not expressly address those factors in announcing its decision on the adjustment. Gambino-Ruiz was sentenced to 63 months in custody.

This appeal, which challenges both Gambino-Ruiz's conviction under § 1326 and sentence, followed.

II. STANDARDS OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review the district court's judgment of conviction and its sentence. We review "the denial of a motion to dismiss under 8 U.S.C. § 1326(d) de novo." United States v. Martinez-Hernandez, 932 F.3d 1198, 1202 (9th Cir. 2019). We also review de novo "whether the district court misapprehended the law with respect to the acceptance of responsibility reduction." United States v. Green, 940 F.3d 1038, 1041 (9th Cir. 2019).

III. ANALYSIS

A. Gambino-Ruiz's Conviction under § 1326

1. Statutory Framework

An alien is criminally liable for illegal reentry if he or she "has been . . . deported, or removed . . . and thereafter . . . enters, attempts to enter, or is at any time found in, the United States." 8 U.S.C. § 1326(a). In a criminal action brought under § 1326, an alien has a right under the Due Process Clause of the Fifth Amendment to collaterally challenge the removal order underlying the charge of illegal reentry. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th Cir. 2004) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)). Congress codified that right, with certain conditions, at 8 U.S.C. § 1326(d). To sustain a collateral attack under § 1326(d), the alien must demonstrate that (1) he or she "exhausted any administrative remedies" for relief against the order; (2) the removal proceedings "improperly deprived the alien of the opportunity for judicial review;" and (3) the order was "fundamentally unfair." Id. The Supreme Court has stated that "each of the[se] statutory requirements . . . is mandatory." United States v. Palomar-Santiago, 593 U.S. 321, 141 S. Ct. 1615, 1622, 209 L.Ed.2d 703 (2021).

The parties agree that Gambino-Ruiz has satisfied the first two elements of a § 1326(d) collateral attack. The government concedes that the administrative exhaustion and judicial review prongs are satisfied in the context of expedited removal because neither are available to an alien so removed. See United States v. Ochoa-Oregel, 904 F.3d 682, 685 (9th Cir. 2018) ("An alien who had been removed through expedited removal proceedings automatically satisfies the requirements for exhaustion and deprivation of judicial review."); United States v. Barajas-Alvarado, 655 F.3d 1077, 1081-82 (9th Cir. 2011) (holding that Congress has deprived courts of jurisdiction to review a direct appeal from an expedited removal order).

This leaves us with the question of whether Gambino-Ruiz's removal in 2013 through expedited proceedings was "fundamentally unfair." 8 U.S.C. § 1326(d)(3). A removal order is fundamentally unfair if "(1) [an alien]'s due process rights were violated by defects in the underlying deportation proceeding, and (2) he suffered prejudice as a result." United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004) (alteration in original) (citing Ubaldo-Figueroa, 364 F.3d at 1048). Gambino-Ruiz maintains that his 2013 removal violated his due process rights because he was not inadmissible on the grounds that authorize expedited removal, and thus, could not be placed in expedited removal proceedings.

Section 1225(b)(1) governs expedited removals. As relevant here, § 1225(b)(1)(A)(i) provides:

If an immigration officer determines that an alien . . . who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review . . . .

8 U.S.C. § 1225(b)(1)(A)(i). The statute sets forth two independent conditions that must be satisfied for an alien to be subject to expedited removal, each of which has two possible avenues for satisfaction. First, the alien must belong to one of two categories: aliens "who [are] arriving in the United States" or aliens "described in clause (iii)." Second, the examining immigration officer must determine that the alien is inadmissible under either of the two specifically enumerated subsections of 8 U.S.C. § 1182. The subsection relevant to this case is § 1182(a)(7), covering the inadmissibility of aliens who lack valid entry documents at the time they apply for admission to the United States.²

As to the first condition, the INA itself does not define the precise contours of when an alien "is arriving" in the United States. 8 U.S.C. § 1225(b)(1)(A)(i). But both parties acknowledge that since 1997 the government has defined the term "arriving alien" narrowly to mean "an applicant for admission coming or attempting to come into the United States at a...