United States v. Sanchez-Aguilar, No. 12-30046 (Watford, author; Tallman also on panel; Fitzgerald (C.D. Cal.) dissenting)


The Ninth Circuit affirmed a conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). It held that, with respect to a subsequent prosecution based on the same removal order, the judicially-created requirement that the defendant be physically outside the United States for some period of time, see United States v. Meza-Villarello, 602 F.2d 209 (9th Cir. 1979), was not an element of the § 1326 case, and so the government presented sufficient evidence to sustain the conviction. Nor was there any double-jeopardy violation, for it was undisputed that the petitioner had been outside the United States for some period of time between the first and second prosecutions. The court also rejected a collateral attack on the underlying removal order; there was no due process violation because that removal order was the product of expedited removal proceedings and the defendant had received all the process that was provided him under the governing regulations.

Dissenting, District Judge Fitzgerald noted that the holding in Meza-Villarello was based on the denial of a requested jury instruction on the issue, and therefore read that case to require an additional element in illegal-reentry cases involving a subsequent prosecution based on the same removal order. He therefore would treat the defendant's first argument as a proper Rule 29 challenge (whereas the majority treated it as a double-jeopardy claim) and remand for entry of a judgment of acquittal.

The decision is here:


http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/19/12-30046.pdf