United States v. Ortuno-Higareda ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10257
Plaintiff-Appellee, D.C. No.
v.
 CR-00-00786-
1-JMR
RAUL ORTUÑO-HIGAREDA,
Defendant-Appellant. ORDER AND
 OPINION
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
February 7, 2005—San Francisco, California
Filed June 8, 2006
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Rawlinson;
Dissent by Judge Wallace
6335
6338 UNITED STATES v. ORTUÑO-HIGAREDA
COUNSEL
Francisco León, Tucson, Arizona, for defendant-appellant
Raul Ortuño-Higareda.
Nathan D. Leonardo, Assistant United States Attorney, Tuc-
son, Arizona, for plaintiff-appellee United States of America.
ORDER
The petition for panel rehearing is GRANTED. The opin-
ion and concurrence/dissent filed on August 26, 2005, are
UNITED STATES v. ORTUÑO-HIGAREDA 6339
withdrawn. The superseding opinion and dissent will be filed
concurrently with this order. Further petitions for rehearing or
for rehearing en banc may be filed.
OPINION
RAWLINSON, Circuit Judge:
Raul Ortuño-Higareda (“Ortuño”) challenges the revoca-
tion of his supervised release. Because we hold that the dis-
trict court had jurisdiction to revoke Ortuño’s supervised
release, that there was sufficient evidence to prove that
Ortuño violated the conditions of his supervised release, and
that he had imputed knowledge of those conditions, we
AFFIRM.
I
BACKGROUND
Ortuño was convicted in the United States District Court
for the District of Arizona of illegal re-entry after deportation,
in violation of 8 U.S.C. § 1326(a). He was sentenced to an
eighteen-month term of imprisonment followed by thirty-six
months of supervised release. Condition one of Ortuño’s
supervised release stated: “You shall not commit another fed-
eral, state, or local crime during the term of supervision.”
Ortuño was also required to comply with two special condi-
tions, the first of which stated: “If deported, you shall not re-
enter the United States without legal authorization.”
At Ortuño’s sentencing hearing on August 4, 2000, the
court specifically informed Ortuño that if he reentered the
United States within three years after serving his sentence, he
would be in violation of the conditions of his release. The
court further noted that such a violation could result in
6340 UNITED STATES v. ORTUÑO-HIGAREDA
Ortuño’s imprisonment for another three years. When asked
if he understood, Ortuño answered, “[y]es.”
Ortuño was released from federal custody on August 13,
2001. He was deported that same day. In such a case, the
inmate is released directly into the custody of the Department
of Immigration and Naturalization Services (INS).1 No proba-
tion officer meets with the inmate following release.
On May 1, 2003, Ortuño was apprehended by the Border
Patrol at or near Jote Mesa, California and arrested for re-
entering the country without authorization. A criminal com-
plaint was filed against Ortuño in the United States District
Court for the Southern District of California. Subsequently, a
Petition to Revoke Supervised Release and a Warrant for
Arrest were filed in the District of Arizona. The Petition to
Revoke Supervised Release charged that Ortuño violated the
release conditions imposed when he was sentenced.
An evidentiary hearing on the petition to revoke supervised
release was held before a magistrate judge. At the hearing, the
government presented the testimony of Border Patrol Agent
George Allen. During his testimony, Agent Allen was in pos-
session of Ortuño’s original A-file.2 Contained in that A-file
and admitted into evidence was the arrest report, or Record of
Deportable/Inadmissible Alien, for Ortuño, dated May 1,
2003. According to Agent Allen’s testimony, the report indi-
cated that Ortuño’s entry status was without authorization and
that his last known entry into the United States occurred on
May 1, 2003, at or near Jote Mesa, California. The report also
contained a statement describing Ortuño’s apprehension by
the Border Patrol.
1
“The INS is now called the Bureau of Citizenship and Immigration
Services.” United States v. Karaouni, 379 F.3d 1139, 1140 n.1 (9th Cir.
2004).
2
The A-file is the file kept for an alien, containing arrest reports, convic-
tion documents, warrants of deportation, immigration judge orders, photo-
graphs, and fingerprints.
UNITED STATES v. ORTUÑO-HIGAREDA 6341
Another document in the A-file was the criminal complaint
filed in the United States District Court for the Southern Dis-
trict of California. Agent Allen testified that the complaint
contained a similar description of Ortuño’s apprehension.
Finally, the A-file contained the results of a fingerprint exami-
nation. The results reflected a match between the fingerprints
taken from Ortuño and fingerprints previously lodged in
Ortuño’s A-file.3
On cross-examination, counsel for Ortuño asked Agent
Allen whether there was any record of a conviction for the
May 1, 2003 illegal re-entry charge. Agent Allen testified that
he confirmed telephonically that afternoon that there was a
conviction, but that the judgment was not yet in the A-file.
Agent Allen clarified that a copy of the judgment would ordi-
narily not be placed in the A-file until Ortuño was deported.
On re-direct examination, Agent Allen explained that earlier
that afternoon, he confirmed with the San Diego Border Patrol
Prosecution Unit that judgment of conviction was entered on
August 29, 2003.
Ortuño moved to dismiss the Petition to Revoke on the
bases that: 1) the government failed to present sufficient evi-
dence that Ortuño violated the conditions of his supervised
release absent proof of a conviction; and 2) Ortuño was never
provided a written copy of the supervised release conditions.
The magistrate judge issued a Report and Recommendation
(R&R) finding that Ortuño violated the conditions of his
supervised release and was given actual notice of the condi-
tion that he not re-enter the country illegally. The district
court adopted the R&R, revoked Ortuño’s supervised release,
and sentenced him to a twenty-four month term of imprison-
ment.
3
Ortuño does not dispute that these documents were admitted into evi-
dence.
6342 UNITED STATES v. ORTUÑO-HIGAREDA
On appeal, Ortuño renews his argument that his supervised
release should not have been revoked because: 1) the govern-
ment did not produce sufficient evidence that he violated
Standard Condition One; and 2) he did not receive the condi-
tions of supervised release in writing. In addition, he contends
for the first time that, under United States v. Vargas-Amaya,
389 F.3d 901 (9th Cir. 2004), the district court lacked juris-
diction to revoke his supervised release because the warrant
pursuant to which he was arrested was not “supported by Oath
or affirmation” as required by the Fourth Amendment’s War-
rant Clause.
II
STANDARDS OF REVIEW
“The district court’s decision to revoke a term of super-
vised release is reviewed for an abuse of discretion.” United
States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003) (cita-
tion omitted). Whether a defendant received due process at a
proceeding to revoke supervised release is reviewed de novo.
United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998).
“We review the district court’s exercise of jurisdiction de
novo.” United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994)
(citation omitted).
III
DISCUSSION
A. The district court had jurisdiction to revoke Ortuño’s
supervised release.
We address Ortuño’s jurisdictional argument first. See
Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341
F.3d 987, 995 n.12 (9th Cir. 2003) (en banc) (stating that “we
are required to resolve [jurisdictional] questions first”), cert.
dismissed, 540 U.S. 1098 (2004).
UNITED STATES v. ORTUÑO-HIGAREDA 6343
[1] It is undisputed that the warrant which precipitated
Ortuño’s arrest was not “supported by Oath or affirmation.”
The question is whether this deficiency divested the district
court of jurisdiction to revoke his supervised release.
Although Ortuño did not raise this issue in the district court
(Vargas-Amaya had not yet been decided), “we review ques-
tions of jurisdiction even if raised for the first time on
appeal.” Powell, 24 F.3d at 30.
In Vargas-Amaya, we interpreted 18 U.S.C. § 3583(i),
which provides:
The power of the court to revoke a term of super-
vised release for violation of a condition of super-
vised release, and to order the defendant to serve a
term of imprisonment . . . , extends beyond the expi-
ration of the term of supervised release for any
period reasonably necessary for the adjudication of
matters arising before its expiration if, before its
expiration, a warrant or summons has been issued on
the basis of an allegation of such a violation.
[2] We held that “a district court’s jurisdiction to revoke
supervised release can be extended beyond the term of super-
vision under § 3583(i), based upon a warrant issued during
the term of supervision, only if the warrant was issued ‘upon
probable cause, supported by Oath or affirmation,’ as required
by the Fourth Amendment.” Vargas-Amaya, 389 F.3d at 907.
[3] Here, unlike in Vargas-Amaya, the district court’s juris-
diction was not premised upon section 3583(i) because
Ortuño’s supervised release was revoked before expiration of
his supervised release term. See United States v. Schmidt, 99
F.3d 315, 318 (9th Cir. 1996) (“[T]he conditions of section
3583(i) apply only when the revocation of supervised release
occurs after the term of supervised release has expired.”),
overruling on other grounds recognized in United States v.
Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999). Since this
6344 UNITED STATES v. ORTUÑO-HIGAREDA
case does not involve section 3583(i), Vargas-Amaya’s inter-
pretation of that provision is irrelevant.
[4] In Schmidt, we explained that a district court has juris-
diction to revoke a supervised release term before expiration
of that term “even if no warrant or summons was issued in
accordance with 18 U.S.C. § 3583(i).” Id. at 319. The struc-
ture of the supervised release statute buttresses the conclusion
we reached in Schmidt. 18 U.S.C. § 3583(e)(3) provides that
the court may, after considering certain factors, “revoke a
term of supervised release . . . if the court, pursuant to the
Federal Rules of Criminal Procedure applicable to revocation
of . . . supervised release, finds by a preponderance of the evi-
dence that the defendant violated a condition of supervised
release.” The section 3583(e)(3) authority to revoke super-
vised release, unlike that in section 3583(i), is not conditioned
upon the issuance of a warrant. This indicates that Congress
intended to make the issuance of a valid warrant a jurisdic-
tional prerequisite only in cases governed by section 3583(i),
where revocation occurs after the conclusion of the supervised
release term. Where revocation occurs before expiration of
the term, section 3583(e)(3) governs and the district court will
have jurisdiction to revoke supervised release in the absence
of a warrant or even if a warrant is defective.
We acknowledge that certain language in a Vargas-Amaya
footnote could be read to suggest that the requirements of the
Warrant Clause apply even when an arrest occurs during the
term of supervised release. See Vargas-Amaya, 389 F.3d at
905 n.2. However, given our holding in Schmidt and the struc-
ture of the supervised release statute, we do not read this lan-
guage to establish the proposition that noncompliance with
the Warrant Clause creates a jurisdictional defect where revo-
cation occurs before expiration of the supervised release term.
Therefore, that Ortuño was arrested pursuant to a warrant
which was not supported by oath or affirmation did not
deprive the district court of jurisdiction to revoke his super-
vised release.
UNITED STATES v. ORTUÑO-HIGAREDA 6345
With the jurisdiction issue settled, we address the merits of
Ortuño’s challenges to the revocation of his supervised
release.
B. Ortuño had imputed knowledge of the standard
release condition that he not commit a crime.
[5] Ortuño asserts that because he was never provided with
a written statement of the conditions of his supervised release
as required by 18 U.S.C. §§ 3583(f) and 3603(1), the revoca-
tion cannot stand. Initially, the parties and the court focused
our attention on whether Ortuño was given actual notice of
the supervised release condition. See United States v. Ortega-
Brito, 311 F.3d 1136, 1138 (9th Cir. 2002) (examining
whether the supervisee received actual notice of the super-
vised release conditions). Following publication of the panel’s
now-withdrawn opinion vacating the revocation on the basis
that Ortuño did not receive actual notice of the standard con-
dition that he commit no further crimes, see United States v.
Ortuño-Higareda, 421 F.3d 917, 923-25 (9th Cir. 2005), the
government filed a Petition for Rehearing. In its petition, the
government—for the first time—called the panel’s attention
to a line of authority imputing knowledge to supervisees of
the requirements to refrain from future criminal conduct. See,
e.g., United States v. Dane, 570 F.2d 840 (9th Cir. 1977),
where we held that:
Courts have sustained the revocation of probation
. . . where the defendant was not aware of the condi-
tions. In such a case, knowledge of the criminal law
is imputed to the probationer, as is an understanding
that violation of the law will lead to the revocation
of probation.
Id. at 843-44 (citation omitted) (emphasis added); see also
United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987)
(explaining that “[a] court . . . may impute knowledge [of a
probation condition] when the violation is a criminal act”)
6346 UNITED STATES v. ORTUÑO-HIGAREDA
(citation omitted); United States v. Laughlin, 933 F.2d 786,
790 (9th Cir. 1991) (noting that “a court may impute notice
and knowledge of conditions when their violation entails a
criminal act. [The defendant] is thus presumed to have notice
at least that his [criminal] activities violated probation.”)
(citation omitted).4
Ordinarily, we would not consider contentions that went
unmentioned during a full round of briefing and oral argu-
ment. See Varney v. Sec. of Health and Human Servs., 859
F.2d 1396, 1397 (9th Cir. 1988). However, we are now cogni-
zant that our withdrawn panel opinion was in direct conflict
with prior precedent. Compare Ortuño-Higareda, 421 F.3d at
923-24 (requiring actual notice of the standard condition that
the releasee refrain from committing a crime), with Simmons,
812 F.2d at 565 (“[W]hen . . . the proscribed acts are not
criminal, due process requires that the probationer receive
actual notice.”) (emphasis added). To avoid an intracircuit
conflict, and after considering the post-argument filings of the
parties, we elect to consider the government’s argument in
this unique circumstance. See Escobar-Ruiz v. INS, 813 F.2d
283, 286 (9th Cir. 1987) (allowing the government to make a
new argument when to do otherwise would “allow[ ] an
improper [statutory] interpretation . . . to stand as the control-
ling precedent [and] [ ] constitute a disservice to all parties
concerned.).”
Standard Condition 1 provided:
You shall not commit another federal, state or
local crime during the term of supervision.
[6] Standard Condition 1 falls squarely within our prece-
dent that imputes “an understanding that violation of the law
4
The fact that these cases address probation rather than supervised
release does not affect our analysis. See United States v. Hall, 419 F.3d
980, 985 n.4 (9th Cir. 2005).
UNITED STATES v. ORTUÑO-HIGAREDA 6347
will lead to the revocation of probation.” Dane, 570 F.2d at
844. Our precedent forecloses any argument that Ortuño
could not be held accountable for committing the crime of
illegal re-entry and/or being found in the United States after
deported, regardless of whether he received actual notice of
those proscriptions. Accordingly, revocation of Ortuño’s
supervised release for violating Standard Condition 1 was
proper.
C. There is sufficient evidence in the record to support
the district court’s conclusion that Ortuño violated
the conditions of his supervised release.
Ortuño contends that there was insufficient evidence pre-
sented to establish that he was convicted of a federal crime
because the only evidence of his conviction was the hearsay
testimony of Agent Allen. Ortuño postulates that absent proof
of a conviction, insufficient evidence exists to support revoca-
tion of his supervised release. Ortuño also argues that the dis-
trict court’s reliance on the hearsay testimony of Agent Allen
violated his due process rights.
[7] A court may revoke a term of supervised release “if the
court . . . finds by a preponderance of the evidence that the
defendant violated a condition of supervised release . . .” 18
U.S.C. § 3583(e)(3). The first standard condition of Ortuño’s
supervised release was that he “not commit another federal,
state or local crime during the term of supervision.” In addi-
tion, Ortuño was subject to a special condition that “[i]f
deported, [he] shall not re-enter the United States without
legal authorization.” There was no condition imposed that
Ortuño not be convicted of another crime.
The R&R, which the district court adopted, seemed to rely,
at least in part, on Agent Allen’s hearsay testimony that he
telephonically confirmed Ortuño’s conviction. However, the
R&R was also grounded on the documents contained in
6348 UNITED STATES v. ORTUÑO-HIGAREDA
Ortuño’s A-file.5 Id. Thus, although the R&R stated that “the
certified copy of the judgment is the preferable evidence,” it
nonetheless found that “the Government met its burden, by a
preponderance of the evidence, that Ortuño committed a fed-
eral criminal offense while on supervised release.” Id.
(emphasis added).
[8] Of course, a certified conviction would be the best evi-
dence that Ortuño committed the crime of re-entry without
authorization.6 However, other documents in Ortuño’s A-file,
presented through the testimony of Agent Allen, established
by a preponderance of the evidence that Ortuño illegally re-
entered the United States after being deported and thus com-
mitted a federal crime. See 8 U.S.C. § 1326(a). These docu-
ments consisted of the arrest report for Ortuño’s illegal re-
entry, the criminal complaint filed for that offense, and the
results of a fingerprint examination indicating that Ortuño was
the same person who was sentenced in 2000 and deported in
2001. Documents in an A-file are admissible under the public
records exception to the hearsay rule. See United States v.
Hernandez-Herrera, 273 F.3d 1213, 1217-18 (9th Cir. 2001).
Thus, no due process violation occurred, and the district court
acted within its discretion when it revoked Ortuño’s super-
vised release.
5
Ortuño does not assert that the R&R, as adopted by the district court,
failed to adequately identify the basis on which the court resolved the dis-
pute as to the sufficiency of the evidence; thus, our decision in United
States v. Sesma-Hernandez is inapposite. 253 F.3d 403, 405-06 (9th Cir.
2001) (en banc) (holding that due process requires that when a defendant
disputes the evidence relied upon by the government to revoke a term of
supervised release, “the district court must make sufficient findings on the
record to identify the violation and the evidence relied upon to establish
it.”).
6
It is also true that the government could have easily confirmed that
Ortuño was convicted. However, the government did not seek to rely on
Ortuño’s conviction; rather, it was Ortuño who elicited the hearsay testi-
mony about the conviction and then complained that there was no record
of it.
UNITED STATES v. ORTUÑO-HIGAREDA 6349
IV
CONCLUSION
The district court had jurisdiction to conduct the proceed-
ings in this case. Notice was imputed to Ortuño that if he re-
entered or was found in the United States after deportation, he
would be in violation of his supervised release condition that
he refrain from committing further crimes. There was suffi-
cient evidence in the record to support the district court’s
finding that Ortuño violated the conditions of his supervised
release.
AFFIRMED.
WALLACE, Circuit Judge, dissenting:
The government was obviously upset by our earlier opinion
in this case, United States v. Ortuño-Higareda, 421 F.3d 917
(9th Cir. 2005), and immediately began casting its net for a
different and more plausible argument. The government’s
brand new argument, advanced for the first time in its petition
for rehearing, has now been accepted by a majority of this
panel. I must respectfully dissent. I would not entertain the
government’s argument, as it is both waived and without
merit.
As the majority properly states, we normally do not con-
sider contentions that went unmentioned during the full round
of briefing and oral argument, and these arguments are
deemed waived. See, e.g., Squaw Valley Development Co. v.
Goldberg, 395 F.3d 1062, 1063 (9th Cir. 2005) (rejecting
argument “because it is made for the first time in the petition
for rehearing”); Picazo v. Alameida, 366 F.3d 971, 971-72
(9th Cir. 2004) (refusing to consider argument on petition for
rehearing where issue had been raised “at no point in th[e] lit-
6350 UNITED STATES v. ORTUÑO-HIGAREDA
igation”); Talk of the Town v. Dep’t of Finance and Business
Servs., 353 F.3d 650, 650 (9th Cir. 2003) (refusing to consider
argument raised on petition for rehearing “for the first time
ever”).
In Varney v. Secretary of Health & Human Servs., 859 F.2d
1396, 1397 (9th Cir. 1988), we discussed a narrow exception
to the general rule of waiver for cases involving “extraordi-
nary circumstances,” where the issue involved is “sufficiently
urgent.” Id. at 1398. The majority contends that we should jet-
tison the important tenet of waiver because “our withdrawn
panel opinion was in direct conflict with prior precedent.” The
majority relies primarily on three cases: United States v.
Laughlin, 933 F.2d 786 (9th Cir. 1991); United States v. Sim-
mons, 812 F.2d 561 (9th Cir. 1987); and United States v.
Dane, 570 F.2d 840 (9th Cir. 1977).
These three cases, however, do not conflict with our origi-
nal opinion. None of the cases arose under the statutory
regime that is now in place, and even if they had, none of
them rule on the issue that we decided in our withdrawn
Ortuño-Higareda opinion. In Dane, the then-statute was in
fact satisfied. The probation officer had provided a written
form describing the conditions of probation, which Dane had
signed. In addition, the probation officer explained the signifi-
cance of the form to Dane at the time Dane left prison. 570
F.2d at 842-43. It is clear that the question of the statutory
requirements was never raised and, indeed, had it been raised,
the requirements would have been satisfied. The issue of
whether the statute precluded any further analysis was simply
not before the court.
Similarly, in Simmons, there is no indication that the statu-
tory issue was raised. Thus, there can be no conflict with our
withdrawn opinion.
Finally, our decision in Laughlin explicitly leaves open the
very question that was decided in our withdrawn opinion.
UNITED STATES v. ORTUÑO-HIGAREDA 6351
Laughlin “object[ed] that his probation officer failed to per-
form her or his duty under 18 U.S.C. § 3655 to remind him
of these conditions. Section 3655, however, was repealed
effective November 1, 1987—more than two years before
Laughlin’s probation commenced. We thus need not decide
whether a violation of this statute’s provision could warrant
a reinstatement of probation.” Laughlin, 933 F.2d at 790
(emphasis added). It is clear that our decision in Laughlin
leaves open the very question that was decided in our with-
drawn opinion.
Thus, contrary to the majority’s contention that our with-
drawn opinion was in “direct conflict with our prior prece-
dent,” the opposite is true. The issue was never raised except
in Laughlin, where it was specifically left open, and was not
addressed again as being dispositive to the outcome of an
appeal until our withdrawn opinion.
This brings me to our more recent case of United States v.
Ortega-Brito, 311 F.3d 1136 (9th Cir. 2002). There, we spe-
cifically criticized the failure to comply with 18 U.S.C.
§§ 3583(f) and 3603(1). We pointed out that “the obligations
of the district courts and probation officers under th[ese] stat-
utes are specific . . . .” Id. at 1139. However, in that case we
held that the specific term for which supervised release was
being challenged was in fact provided orally to the defendant.
Thus, we excused on our own what is otherwise an absolute
statutory mandate.
How does Ortega-Brito differ from the case before us? As
is clear from our withdrawn opinion, the specific term of
supervised release that Ortuño-Higareda was accused of vio-
lating was not provided to him, orally or in writing, at any
time or by anyone. This case is factually distinct from Ortega-
Brito and all of our prior cases, and presents this specific stat-
utory claim for the first time. We answered the question in our
withdrawn opinion.
6352 UNITED STATES v. ORTUÑO-HIGAREDA
It seems to me that not only was the government demon-
strably tardy, but it was also wrong. While the majority has
accepted its obviously flawed argument and rejected our ordi-
nary waiver doctrines, I cannot. The government’s effort to
demonstrate a conflict that does not exist and its renewed
effort to win a point that it properly lost before will apparently
carry the day. The government, apparently, will be allowed to
continue its unfortunate practice of disregarding statutory
mandates and putting its prosecution practices above the will
of Congress.
For the reasons stated by the withdrawn majority opinion,
I cannot join the present majority. The obligations imposed by
the United States Congress in 18 U.S.C. §§ 3603 and 3583 are
direct and specific. They are binding upon the probation offi-
cers, the district court, and certainly this court. That we have
chosen to disregard them in some cases does not indicate that
we should disregard them in all cases. Perhaps it is time for
our court to look carefully at these cases and to conclude that
these statutes actually mean what they say. We have, in my
judgment, an obligation to enforce them as written, whether
we agree that Congress has adopted a good policy or not.
Acceptance of my position, of course, does not leave the
government without the ability to enforce the law. The gov-
ernment contends that Ortuño-Higareda has violated the law.
It need not attempt to squeeze this alleged crime into a viola-
tion of supervised release. The government is free to indict
Ortuño-Higareda on the new crime and to present evidence of
the violation. Because of its own failure to follow the statu-
tory mandate, the government’s decision to shoehorn this
alleged crime into a supervised release violation is unfortu-
nate. That the majority allows the government to do so is even
more regrettable.
For the reasons stated above, I would not withdraw our
prior opinion. For the reasons stated in the prior majority
UNITED STATES v. ORTUÑO-HIGAREDA 6353
opinion, see Ortuño-Higareda, 421 F.3d at 922-25, I dissent
from the majority disposition.