United States v. Alexander Mazariegos-Mazariego ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10316
Plaintiff-Appellee, D.C. No. 3:20-cr-00003-EMC-1
v.
MEMORANDUM*
ALEXANDER GIMARAIS
MAZARIEGOS-MAZARIEGOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted March 16, 2022**
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,*** District
Judge.
Alexander Mazariegos-Mazariegos, a citizen of Guatemala, entered a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
conditional plea of guilty to illegal reentry under 8 U.S.C. § 1326, was sentenced
to time served, and appeals the district court’s denial of his motion to dismiss the
indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
novo the denial of a motion to dismiss an indictment, and we review for clear error
the district court’s factual findings. See United States v. Garcia-Gonzalez, 791
F.3d 1175, 1179 (9th Cir. 2015). The district court’s judgment is affirmed.
Mazariegos entered the United States in 2012 by crossing the border into
Arizona. He was apprehended by immigration authorities, detained, placed in
expedited removal proceedings, and deported. Mazariegos reentered the United
States in 2016. He was apprehended by immigration authorities and released to his
sister under a supervision order requiring him to remain on electronic monitoring.
In 2017, Mazariegos removed his ankle monitor and moved to California. In
January 2020, he was arrested and charged with illegal reentry.
Mazariegos moved to dismiss the indictment, arguing that his 2012 removal
violated due process and therefore could not serve as the predicate for an illegal
reentry charge. Mazariegos asserted that Luis Trujillo, the Border Patrol agent
who processed his 2012 removal, failed to review or read him the advisements on
Form I-867AB, did not ask him all the questions on Form I-867AB, failed to
advise him of the charges on Form I-860, did not obtain his signature on every
page of Form I-867A, and failed to obtain his signature upon service of Form
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I-860. The district court held an evidentiary hearing at which Mazariegos and
Agent Trujillo testified.
Although Agent Trujillo did not specifically recall Mazariegos, the district
court found that “he testified credibly regarding his practices and training with
respect to apprehending aliens and processing the relevant paperwork for expedited
removal,” that he was in the early stages of his career and under strict supervision
by a senior Border Patrol agent during his interaction with Mazariegos, and that
Agent Trujillo’s “credibility went largely unchallenged.” By contrast, the court
found that Mazariegos’s testimony “contained multiple inconsistencies” and “was
. . . contradicted by the forms,” and “[b]ased on his demeanor and the substance of
his testimony,” the court concluded it could not “credit [his] testimony on key
points.” The court concluded that Agent Trujillo followed standard practice during
his interaction with Mazariegos—including informing him of the charges on Form
I-860, asking all questions on Form I-867, and advising him of the rights on Form
I-867—and therefore that Mazariegos’s 2012 removal satisfied due process.
The district court’s factual findings are not clearly erroneous. “In order to
reverse a district court’s factual findings as clearly erroneous, we must determine
that the district court’s factual findings were illogical, implausible, or without
support in the record.” United States v. Spangle, 626 F.3d 488, 497 (9th
Cir. 2010). “Where testimony is taken, we give special deference to the district
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court’s credibility determinations.” United States v. Craighead, 539 F.3d 1073,
1082 (9th Cir. 2008). Nothing in the record gives any basis to conclude that the
district court’s factual findings were implausible, contradicted by evidence, or
internally inconsistent. To the contrary, the district court’s findings plausibly
weighed the documentary evidence and the credibility of Agent Trujillo and
Mazariegos.
Because we do not disturb the district court’s factual findings, it follows that
Agent Trujillo did not violate Mazariegos’s due process rights. Agent Trujillo read
the requisite charges and advisements and complied with the relevant regulations.
The fact that Agent Trujillo failed to obtain Mazariegos’s signature on every page
of Forms I-867 and I-860 does not amount to a due process violation. See United
States v. Mendez-Casillas, 272 F.3d 1199, 1205 (9th Cir. 2001). It follows that the
2012 removal provided a lawful predicate for the illegal reentry charge to which
Mazariegos pleaded guilty.
AFFIRMED.
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