United States v. Cesar Aceves ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 18 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50195
Plaintiff-Appellee, D.C. No. 2:15-cr-00245-GW-1
v.
MEMORANDUM*
CESAR RAUL ACEVES,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted March 2, 2020
Pasadena, California
Before: KLEINFELD and CALLAHAN, Circuit Judges, and CHRISTENSEN,**
District Judge.
Cesar Raul Aceves’s collateral attack on his deportation order must fail,
according to the text of 8 U.S.C. § 1326(d). Subsections (1) and (2) are not
satisfied, because he did not exhaust available proceedings to seek relief, nor was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
he deprived of judicial review. Nor was there any fundamental unfairness
regarding the entry of the order, as subsection (3) requires. Aceves was deportable,
was represented by counsel, had conceded removability, had no plausible avenue
for relief, and has shown no prejudice. Although he argues that the record does not
sufficiently establish that he understood the proceedings, he has come forward with
no cognizable evidence that would cast doubt on his understanding.
Aceves argues that the jury instructions omitted an element of the crime,
because they did not require the government to prove that he knew he had been
deported. He concedes, as he must, that under established Ninth Circuit law, there
was no such element, and it sufficed for the government to prove that he
voluntarily entered the United States having been deported and without permission,
and knowingly remained. United States v. Flores-Villar, 536 F.3d 990, 999 (9th
Cir. 2008), aff'd, 564 U.S. 210 (2011), and abrogated on other grounds by
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017); United States v. Rivera-
Sillas, 417 F.3d 1014, 1020 (9th Cir. 2005); United States v. Leon-Leon, 35 F.3d
1428, 1432–33 (9th Cir. 1994). Aceves presents a substantial argument that these
cases are inconsistent with recent subsequent Supreme Court authority, and are
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therefore no longer good law, citing Elonis v. United States, 575 U.S. ____, 135 S.
Ct. 2001 (2015) and Rehaif v. United States, 139 S. Ct. 2191 (2019).
We remain bound, however, by controlling Ninth Circuit precedent, under
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), because Elonis and
Rehaif addressed different statutes from the one charged in this case, and
knowledge that he had been deported was not the only factor that would make
Aceves’s conduct criminal. Entering the United States without complying with
immigration procedures was not “otherwise innocent conduct,” Elonis, 135 S. Ct.
at 2010 (quoting Carter v. United States, 530 U.S. 255, 269 (2000)), whether or
not Aceves understood that he had been deported.
And even if the district court were deemed to have erred by omitting the
instruction Aceves sought, the error would be harmless on the record in this case.
It appears beyond a reasonable doubt that the claimed error did not contribute to
the verdict. United States v. Conti, 804 F.3d 977, 980 (9th Cir. 2015). Though his
attorney argued that Aceves might not have understood that he was being deported,
no declaration or other cognizable evidence was submitted to establish that Aceves
lacked the requisite knowledge. The events upon his release from prison provide
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overwhelming evidence that he knew he was being deported. He was ordered
deported in a judicial proceeding, given papers saying that he was being deported,
and sent to Mexico on a bus with other deportees. There is no evidence in the
record to support Aceves’s argument that he may not have understood, or that his
attorney did not explain, what was occurring, or that he might have thought that the
presence of some aliens on the bus who had been granted voluntary departure
would have left him ignorant of whether he was being deported.
Aceves also argues that we must remand for correction of three conditions of
supervised release violative of United States v. Evans, 883 F.3d 1154, 1162–64
(9th Cir. 2018). He is correct, as the government necessarily concedes. What used
to be standard conditions five, six, and fourteen were in Evans held to be
unconstitutional, so we remand for the district court to modify or delete them as it
deems appropriate.
AFFIRMED in part, VACATED and REMANDED in part.
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