[00:00:02] Speaker 04:
And the next case before us this morning is United States versus Herrera Salazar.

[00:00:08] Speaker 04:
It's 24-7029.

[00:01:00] Speaker 01:
May it please the Court, and my honorable opponent, I blame my recounsel for Defendant Appellant Jesus Herrera Salazar.

[00:01:07] Speaker 01:
The question here is whether Herrera Salazar's conviction in the Eastern District of Oklahoma for unlawful reentry under 1326A violated the Double Jeopardy Clause.

[00:01:21] Speaker 01:
And the specific issue is whether the Double Jeopardy Clause prohibits the conviction where it is undisputed

[00:01:29] Speaker 01:
that Arara Salazar was not removed from the United States after he served his prison sentence in the Texas case when he was released in 2021.

[00:01:39] Speaker 04:
Well, he's actually still serving his sentence in the Texas case, isn't he?

[00:01:45] Speaker 04:
The supervisor released as part of his sentence.

[00:01:48] Speaker 01:
Well, correct.

[00:01:49] Speaker 01:
But he was no longer in BOP custody as of 2021.

[00:01:53] Speaker 01:
But yeah, still serving his supervised release, although I don't know if it has expired yet.

[00:02:01] Speaker 04:
Well, he's been deported now.

[00:02:03] Speaker 01:
He was deported following his release from prison in Oklahoma and was deported about, I think, a little over a year ago.

[00:02:14] Speaker 01:
The facts in this case, though, are essentially undisputed.

[00:02:18] Speaker 01:
He was removed from the United States

[00:02:22] Speaker 01:
in February of 2015.

[00:02:25] Speaker 01:
At some time thereafter, he re-entered the United States.

[00:02:31] Speaker 01:
And then in May of 2020, he was found in Brownsville, Texas, and was arrested there and charged with an offense under 8 USC 1326 for being unlawfully, an alien unlawfully found in the US after deportation.

[00:02:50] Speaker 01:
He pled guilty in the Texas case and was sentenced to prison, which he served.

[00:02:57] Speaker 01:
And then he was released from prison in Texas in June of 2021.

[00:03:02] Speaker 04:
And he was instructed in the order, his sentencing order, that once he finished his term of imprisonment in Texas, if not deported within 72 hours of release from the custody of the Bureau of Prisons,

[00:03:20] Speaker 04:
you shall report in person to the probation office in the district to which you are released.

[00:03:25] Speaker 01:
Correct.

[00:03:26] Speaker 04:
He did that.

[00:03:26] Speaker 01:
He did that.

[00:03:27] Speaker 01:
He did exactly what he was ordered to do.

[00:03:30] Speaker 01:
And then while in April 2022, so another 10 months after his release and when he was on the supervised release in the Texas case, he was in the eastern district of Oklahoma where he was supposed to be, and he was arrested and again charged with a violation of 1326A.

[00:03:50] Speaker 04:
Well, I think the government's argument is that based on all his prior history, immigration history, he was well aware, and in fact I think he testified to this at the hearing, he was well aware that he was not allowed to be in the United States.

[00:04:08] Speaker 04:
Correct?

[00:04:09] Speaker 01:
Correct.

[00:04:13] Speaker 01:
Under the Ninth Circuit rule from the Metz of Rio case and the Sanchez Aguilar case, there has to be a removal from the United States and a subsequent reentry.

[00:04:28] Speaker 01:
There has to be a period of time outside of the United States between the first conviction and the second conviction.

[00:04:35] Speaker 01:
In both of those Ninth Circuit cases, there was such a

[00:04:40] Speaker 01:
intervening period of absence from the United States.

[00:04:45] Speaker 01:
The original conviction was 1975.

[00:04:47] Speaker 01:
He's arrested in 1978 and then convicted in 1979.

[00:04:55] Speaker 01:
But he admitted when he was arrested in 1978 that his home address was in Mexico and that he had crossed the border that day.

[00:05:05] Speaker 01:
So in that case,

[00:05:09] Speaker 01:
being present outside of the United States, a double jeopardy requirement was met.

[00:05:19] Speaker 01:
In the Sanchez Aguilar case, similarly, there was a 2009 conviction, and then a 2010 removal, and a 2011 arrest and charge.

[00:05:30] Speaker 01:
And the majority in that case said that after he served his sentence, the defendant served his sentence for the 2009 conviction,

[00:05:38] Speaker 01:
He was immediately removed from the US following completion of his sentence for the first conviction.

[00:05:44] Speaker 01:
And therefore, the government had proven that he was outside the United States before it initiated the second prosecution.

[00:05:52] Speaker 04:
Where in Section 1326A do you see a requirement that the government prove that someone has reentered in order to be convicted of being found in?

[00:06:07] Speaker 01:
It's not in the statute.

[00:06:10] Speaker 01:
We're relying on the case law from the Ninth Circuit, which says and interprets 1326A to require it in order to avoid double jeopardy, in order to avoid being arrested at the prison gates is what they call it.

[00:06:28] Speaker 01:
For an example here, if Mr. Herrera Salazar had been released on bond after his arrest in Oklahoma,

[00:06:37] Speaker 01:
under the government's theory, he could then have been arrested and charged again for the same offense and it would not be double jeopardy.

[00:06:44] Speaker 04:
But it really isn't the same offense because it's whether you were found in the United States and he's been found in the United States on different dates.

[00:06:57] Speaker 04:
Isn't it somewhat like being a felon in possession?

[00:07:00] Speaker 04:
Your felony is still the same.

[00:07:02] Speaker 04:
In this case, the fact that he's been removed once remains the same.

[00:07:07] Speaker 04:
And then anytime he's found in the United States, he's in violation.

[00:07:11] Speaker 04:
And the government, under the statute, doesn't have an obligation to show when or how he entered.

[00:07:18] Speaker 01:
And that is the government's position.

[00:07:20] Speaker 01:
And I would agree with the analogy to the firearms, without getting into the Bruin question of whether you can even bar that under 922 anymore.

[00:07:30] Speaker 04:
Didn't they rule on it?

[00:07:32] Speaker 01:
Yeah, I just lost the case on that.

[00:07:35] Speaker 01:
This court has said that the found in offense is first committed at the time of reentry and continues to the time when the defendant is arrested for the offense.

[00:07:46] Speaker 01:
My point is that the Ninth Circuit has this, what I would call, protective gloss on the statute that it believes is required because of the double jeopardy clause.

[00:07:57] Speaker 01:
And it's my position that this court should adopt that as well to avoid these type of serial prosecutions.

[00:08:04] Speaker 01:
What was Mr. Herrera Salazar supposed to do, self-deport or maintain his relationship with his probation officer?

[00:08:12] Speaker 04:
Well, isn't that really a due process?

[00:08:14] Speaker 04:
I mean, aren't you really arguing more of a due process argument in that he was ordered, if he wasn't deported,

[00:08:23] Speaker 04:
to stay in the United States for two years and report to his probation officer.

[00:08:28] Speaker 04:
That doesn't really sound like a double jeopardy issue.

[00:08:31] Speaker 01:
There is definitely a due process component to it.

[00:08:34] Speaker 01:
However, in the trial court, the issue was raised with a motion to dismiss the indictment on double jeopardy grounds.

[00:08:42] Speaker 01:
And so that issue was properly preserved.

[00:08:45] Speaker 01:
I don't believe it was treated as a due process question.

[00:08:49] Speaker 04:
It wasn't argued as a due process, so obviously it wasn't treated as a due process.

[00:08:53] Speaker 04:
But in a double jeopardy case, we typically start with the statute, and we look at what the elements are, and we determine whether any of the elements that are, and typically in a double jeopardy argument, you're talking about a single criminal event where multiple crimes are charged, and you're trying to figure out

[00:09:17] Speaker 04:
whether you really have different crimes based on different elements.

[00:09:22] Speaker 01:
Correct.

[00:09:22] Speaker 04:
Isn't that the typical double jeopardy scenario?

[00:09:25] Speaker 01:
Yes.

[00:09:26] Speaker 04:
I mean, it doesn't really feel like what we have here.

[00:09:30] Speaker 01:
And that's why I would go back to the continuing offense.

[00:09:33] Speaker 01:
The offense is a continuing one.

[00:09:36] Speaker 01:
It starts upon the reentry into the United States and continues until the arrest.

[00:09:41] Speaker 01:
And it's our contention that that is the completed offense.

[00:09:45] Speaker 01:
And charging him again without having a subsequent reentry is the double jeopardy problem.

[00:09:51] Speaker 01:
That's the case.

[00:09:52] Speaker 01:
That's the rule out of the Ninth Circuit.

[00:09:59] Speaker 01:
And the rule is that the same removal order.

[00:10:03] Speaker 04:
Well, what if he had been ordered, instead of this order that says if you're not deported in 72 hours, what if it said self-deport?

[00:10:12] Speaker 04:
And he didn't do it.

[00:10:13] Speaker 04:
Could he have been charged again with being found in the United States?

[00:10:18] Speaker 04:
Sure, he could, couldn't he?

[00:10:19] Speaker 01:
Yes, I think so.

[00:10:20] Speaker 01:
Because he'd been ordered to leave and have it, that would be similar to the Pena-Hi-May case out of the Ninth Circuit.

[00:10:27] Speaker 04:
Where he comes in for one day.

[00:10:28] Speaker 01:
Which comes in for one day for a custody hearing and then stays.

[00:10:32] Speaker 04:
But we don't have a subsequent reentry.

[00:10:35] Speaker 04:
In the Ninth Circuit case, you do have a subsequent reentry, which was

[00:10:40] Speaker 04:
with permission for parole for one day.

[00:10:43] Speaker 04:
In my example, there's no subsequent reentry.

[00:10:47] Speaker 04:
He didn't self-deport.

[00:10:49] Speaker 04:
He's still bound in the United States.

[00:10:52] Speaker 04:
And it's not a double jeopardy problem, is it?

[00:10:55] Speaker 01:
I don't believe so.

[00:10:56] Speaker 01:
But that's not this case.

[00:10:58] Speaker 01:
And I think it does matter.

[00:11:00] Speaker 04:
But does it matter because of double jeopardy is my analytical confusion.

[00:11:07] Speaker 01:
It does under the Ninth Circuit rule, and that's what we're asking this court to adopt.

[00:11:12] Speaker 05:
Are you really saying that he's being found in the United States with authorization because the statute requires without authorization?

[00:11:21] Speaker 05:
The fact is he didn't have authorization to be in the United States, but it seems like you're almost suggesting that he had authorization because he was told to report to the probation officer in Oklahoma.

[00:11:34] Speaker 05:
And that's not, of course, authorization to remain.

[00:11:37] Speaker 01:
Correct.

[00:11:38] Speaker 01:
Correct.

[00:11:39] Speaker 01:
It's not.

[00:11:39] Speaker 01:
But as the defendant, and he's told and given a bus ticket from post-Texas to Heavener, Oklahoma, and has said, you need to report, so he does that.

[00:11:50] Speaker 01:
And then he gets arrested.

[00:11:51] Speaker 01:
And that is, in our view, and under the Ninth Circuit rule, is a double jeopardy violation, because there was no subsequent reentry after the release from prison in Texas.

[00:12:03] Speaker 05:
Well, in Judge McHugh's hypothetical, there's no reentry either.

[00:12:08] Speaker 05:
had he been told to self-deport or self-deport and he disappears for a while?

[00:12:17] Speaker 05:
Well, I think that's similar to... And you're suggesting that in that case, he could have been charged with the violation of 1326.

[00:12:24] Speaker 01:
I think so, and again, that's similar to the Pena-Heime case.

[00:12:26] Speaker 01:
Now, I understand there was a reentry there.

[00:12:29] Speaker 01:
The issue was that the permission to be there expired and he didn't leave.

[00:12:35] Speaker 01:
If he's ordered to leave and stays past the date when he's told to leave, then I think it wouldn't be a double jeopardy issue.

[00:12:42] Speaker 01:
But that's not what we have here.

[00:12:43] Speaker 05:
So you are focusing on the without authorization language in the statute?

[00:12:47] Speaker 05:
Is that really what this is about?

[00:12:50] Speaker 01:
Well, I think it's a component of it.

[00:12:52] Speaker 01:
But it really is based on the Ninth Circuit rule, which is that

[00:12:58] Speaker 05:
Well, we have to interpret the statute.

[00:13:00] Speaker 05:
And you said that the statute does not support your interpretation.

[00:13:05] Speaker 05:
So I'm trying to figure out.

[00:13:07] Speaker 05:
You're asking us to read words into the statute.

[00:13:10] Speaker 01:
Well, I'm asking you to adopt the Ninth Circuit rule, which has said that... It's not a rule.

[00:13:16] Speaker 05:
It's an interpretation.

[00:13:18] Speaker 05:
And we've got to interpret it ourselves.

[00:13:21] Speaker 01:
Right.

[00:13:21] Speaker 01:
It's case law.

[00:13:23] Speaker 01:
It's case law that on the facts of this case would produce a double jeopardy violation.

[00:13:28] Speaker 04:
Well, it's case law that's not binding on us.

[00:13:31] Speaker 01:
No, it is not.

[00:13:32] Speaker 04:
And we have to do our own analysis that starts with the language of the statute.

[00:13:39] Speaker 04:
And so we're trying to put your argument.

[00:13:41] Speaker 04:
I think Judge Moritz is trying to help you put your argument into a statutory framework by asking, are you arguing he had authorization to be here?

[00:13:51] Speaker 01:
Well, what I'm saying, no, I'm not saying that.

[00:13:54] Speaker 01:
I'm saying that he was told where to go.

[00:13:57] Speaker 01:
But what I am saying is that the offense ended.

[00:14:02] Speaker 01:
The 1326A offense ended when he was arrested in Brownfield, Texas and went to prison for that.

[00:14:07] Speaker 01:
The government cannot charge him again for that same offense without a subsequent reentry.

[00:14:12] Speaker 01:
They cannot rely on a prior removal order.

[00:14:15] Speaker 05:
But you just said they could if he disappeared for a while and if there was a self-deportation

[00:14:21] Speaker 01:
If there was a self-deportation order, which we don't have here, I think that is a critical difference.

[00:14:25] Speaker 05:
Well, but a self-deportation order doesn't require a re-entry.

[00:14:28] Speaker 05:
And the way I understand your argument, you're suggesting that the statute requires a new re-entry.

[00:14:36] Speaker 05:
in order to have a new offense.

[00:14:38] Speaker 05:
And in this hypothetical, there's no reentry.

[00:14:42] Speaker 05:
So I'm trying to understand what it is that you want us to read into the statute.

[00:14:45] Speaker 01:
The Sanchez-Aguilar case.

[00:14:47] Speaker 01:
So long as the government proves the defendant has been outside of the United States after each conviction before he is again prosecuted for violating 1326.

[00:14:57] Speaker 01:
It's a double jeopardy issue.

[00:14:59] Speaker 04:
Unless, of course, he was ordered to self-deport.

[00:15:03] Speaker 01:
I'd like to reserve the balance.

[00:15:04] Speaker 04:
I'll give you a little bit more time, but I have a question of what difference does any of this make?

[00:15:11] Speaker 04:
Your client can't be in the United States.

[00:15:13] Speaker 04:
He admits he can't be in the United States, and he's now been deported.

[00:15:18] Speaker 01:
Because it's an additional felony on his record.

[00:15:23] Speaker 04:
Which would be relevant if he came into the United States again.

[00:15:26] Speaker 01:
And he's come back before, so we can't assume that that won't happen.

[00:15:51] Speaker 02:
May it please the court, counsel Patrick Flanagan, on behalf of the United States.

[00:15:56] Speaker 02:
We're asking this court to affirm the judgment and conviction of the district court in the underlying case against Mr. Herrera Salazar.

[00:16:03] Speaker 02:
The defendant's double jeopardy arguments are based on an interpretation of Ninth Circuit case law, which is not binding on this court, and which, Judge McHugh, as you noted, doesn't appear anywhere in the statute.

[00:16:15] Speaker 04:
Well, let me ask you this.

[00:16:19] Speaker 04:
a person whose English is in his first language and he's been arrested and deported and he's arrested again and he serves his time and then he's given an order of supervised release that tells him, if you are not deported within 72 hours, report to the probation office and you've got two years of supervised release to serve.

[00:16:46] Speaker 04:
I mean, it seems to me he was told

[00:16:49] Speaker 04:
If you're not deported, you must serve two years of supervised release, which is what he was doing.

[00:16:57] Speaker 04:
He was still serving the sentence for his prior conviction, wasn't he?

[00:17:01] Speaker 02:
He was still serving the supervised release on April 1st of 2022 when he was arrested for unrelated criminal conduct that violated the terms of his supervised release.

[00:17:12] Speaker 04:
He's not unrelated.

[00:17:13] Speaker 04:
He's been ordered to stay in the United States and serve supervised release because he wasn't deported.

[00:17:20] Speaker 04:
And he's arrested while he's serving that portion of his sentence.

[00:17:26] Speaker 02:
Yes, Your Honor.

[00:17:27] Speaker 02:
By state.

[00:17:27] Speaker 04:
I mean, that's problematic, isn't it?

[00:17:30] Speaker 02:
It's not ideal in these circumstances, Your Honor.

[00:17:32] Speaker 02:
One thing I would note for the court, Mr. Herrera Salazar has, and was shown in the record, multiple prior removals dating back from 2005.

[00:17:44] Speaker 04:
And I'm sure when he was ordered

[00:17:47] Speaker 04:
to serve two years of supervised release in Oklahoma so he could live at home with his wife and children.

[00:17:53] Speaker 04:
He was like, oh, please don't throw me in that briar patch.

[00:17:57] Speaker 04:
But at the end of the day, that's what the order says.

[00:18:01] Speaker 02:
That was the Texas sentence, Your Honor, when he came to Oklahoma immigration notice.

[00:18:06] Speaker 04:
Right.

[00:18:06] Speaker 04:
He was serving the Texas sentence when he was arrested on the Oklahoma violation.

[00:18:13] Speaker 02:
Yes, Your Honor, but he did not have authority to be in the country at that point, as he acknowledged in his trial testimony, that he knew he was not supposed to be here and remained.

[00:18:23] Speaker 04:
It was somewhat... Well, he also argued that I was doing what they told me to do.

[00:18:28] Speaker 04:
They bought me a bus ticket and sent me to Oklahoma, and I had a probation officer coming over to my house and doing home visits.

[00:18:37] Speaker 04:
during this period of time while I was serving my supervised release as ordered by the Texas sentencing judge.

[00:18:46] Speaker 02:
Yes, Your Honor, but he did not have permission from the Attorney General or the Secretary of Homeland Security to be present in the United States, which is what's required under 1326.

[00:18:58] Speaker 02:
And he knew that from his various violations and convictions throughout the past 20 years.

[00:19:07] Speaker 02:
approximately 20 years.

[00:19:08] Speaker 02:
So he was well aware that that did not entitle him to remain in the United States.

[00:19:15] Speaker 02:
It was somewhat self-serving for him to remain and say, oh, my probation officer said I could.

[00:19:21] Speaker 02:
Because he also did not report to INS or give any kind of notice that he was, in fact, in the country to immigration authorities.

[00:19:31] Speaker 02:
So he was familiar with the process, having been

[00:19:35] Speaker 02:
in the United States prior to 2005.

[00:19:37] Speaker 02:
He knew that INS and ICE needed to know where he was.

[00:19:42] Speaker 02:
And he did not take any steps subsequent to his release on the Texas imprisonment.

[00:19:48] Speaker 04:
Judge Murphy has a question.

[00:19:49] Speaker 02:
Oh, sorry, Judge.

[00:19:55] Speaker 00:
The benefit to the government for prosecuting him in Oklahoma was to make him serve time so that he

[00:20:03] Speaker 00:
teaching a lesson not to return the fifth time?

[00:20:09] Speaker 00:
Was that the benefit of the government?

[00:20:11] Speaker 02:
Yes, your honor.

[00:20:12] Speaker 02:
Part of the impetus for this prosecution was the deterrence of this defendant from returning to United States.

[00:20:22] Speaker 02:
I would note that he was deported in April of 2024.

[00:20:26] Speaker 02:
As far as the United States is aware, as of this morning, he has not returned to the United States.

[00:20:33] Speaker 02:
So in that respect, it has been successful in deterring him to this point.

[00:20:39] Speaker 00:
Well, I mean, if he had- Well, wait a minute.

[00:20:41] Speaker 00:
Sorry.

[00:20:41] Speaker 00:
Merely because you don't know whether he's returned doesn't mean he has not returned.

[00:20:46] Speaker 00:
You would agree with that.

[00:20:48] Speaker 00:
I would, Your Honor, but every indication that we currently have- So you don't know whether there is any benefit to the government from doing this.

[00:20:55] Speaker 00:
as opposed to just deporting him, correct?

[00:21:00] Speaker 02:
Well, Your Honor, we kept him from re-entering until at least April of last year and other crimes off him because he's permanently barred.

[00:21:09] Speaker 04:
Well, he was already permanently barred, wasn't he?

[00:21:12] Speaker 02:
Yes, ma'am.

[00:21:13] Speaker 04:
So you could have just deported him from Oklahoma because he was already not allowed to be in the US.

[00:21:23] Speaker 02:
Yes, Your Honor, he could have just been deported.

[00:21:26] Speaker 04:
It seems very odd to me that we get a sentence of supervised release for a person who's not allowed to be in the United States, that the order itself requires them to be in the United States unless they are deported and then nobody deports them.

[00:21:48] Speaker 04:
It seems like you're giving them very confusing instructions on what to do.

[00:21:53] Speaker 04:
I mean, he's still serving a sentence.

[00:21:56] Speaker 02:
Yes, Your Honor, that is a confusing result from the Texas court.

[00:22:01] Speaker 05:
Well, I guess I'm... Well, it's confusing in Oklahoma as well.

[00:22:04] Speaker 05:
I would think that it would be odd for the Oklahoma probation folks to have this circumstance.

[00:22:11] Speaker 05:
Is this typical?

[00:22:14] Speaker 05:
Or is Texas busing

[00:22:17] Speaker 05:
busing defendants to Oklahoma for supervised release and then having them arrested in Oklahoma?

[00:22:23] Speaker 02:
Your Honor, I can't say that this is typical in my experience in the Eastern District of Oklahoma.

[00:22:27] Speaker 02:
This was the first instance I had seen in my time as an AUSA.

[00:22:31] Speaker 02:
I have not seen it subsequent to Mr. Herrera Salazar.

[00:22:35] Speaker 05:
Wouldn't this be a pretty good circumstance not to charge, you know, just to let this one go, perhaps?

[00:22:42] Speaker 05:
Well, Your Honor, he was still... Where he's got mixed signals from...

[00:22:47] Speaker 05:
from the government here?

[00:22:50] Speaker 05:
He's told to stay.

[00:22:51] Speaker 05:
He's told to report.

[00:22:53] Speaker 05:
If he's not deported, he's supposed to stay.

[00:22:55] Speaker 05:
He's supposed to report.

[00:22:56] Speaker 05:
He does all those things.

[00:22:58] Speaker 05:
And then he's arrested.

[00:22:59] Speaker 02:
Yes, Your Honor.

[00:23:00] Speaker 02:
Well, his presence in the United States is he was found in the United States having entered unlawfully multiple times.

[00:23:08] Speaker 02:
He has multiple convictions for this.

[00:23:10] Speaker 05:
I understand all that.

[00:23:10] Speaker 05:
I'm just saying he also is under supervisory lease from a federal district court in Texas.

[00:23:16] Speaker 05:
And presumably that court has some authority, too.

[00:23:19] Speaker 05:
And the order itself, as Judge McHugh read, tells him what he's supposed to do or be in violation of that court's order.

[00:23:29] Speaker 02:
Yes, Your Honor, it does.

[00:23:32] Speaker 04:
Could they have charged him with being present in the United States while he was still serving his prison sentence?

[00:23:40] Speaker 02:
Your Honor, there are instances of defendants being convicted and being charged with 1326 when they're found in prison and receiving the sentencing enhancement for committing a crime while under supervision for an unrelated offense.

[00:23:57] Speaker 02:
Some of those are cited in the briefing.

[00:24:00] Speaker 02:
So in fact, if an individual is in fact in prison and can be convicted of being found in prison,

[00:24:07] Speaker 04:
for being found in the United States, immigration violation, right?

[00:24:14] Speaker 04:
And they're serving the portion of the sentence that's the actual incarceration.

[00:24:18] Speaker 04:
And you're saying that they can be charged with being found in the United States while they're in the custody of the Board of Prisons serving their incarceration.

[00:24:33] Speaker 02:
Your Honor, under those circumstances, it would depend heavily on the facts of the individual defendant.

[00:24:39] Speaker 02:
If, as here, this defendant has multiple prior removals and reentries, conceivably, yes.

[00:24:46] Speaker 04:
Well, how does he remove himself from the United States if he's been put in prison as incarcerated as part of his punishment for being found in the United States?

[00:24:57] Speaker 02:
He would not be able to, without escaping, it would be, he would have a defense.

[00:25:03] Speaker 02:
He would have a pretty solid defense, but he would still be able to be charged based on prior removals and the reading of the statute and case law.

[00:25:13] Speaker 04:
Okay, so if I consider being ordered to serve supervised release as part of his sentence for his prior being found in the United States offense under 1326A,

[00:25:27] Speaker 04:
Isn't that a defense to a new charge for a new violation while he's still subject to the sentencing order?

[00:25:39] Speaker 02:
From a due process consideration, perhaps, Your Honor, that was not raised below.

[00:25:44] Speaker 02:
It was the double jeopardy argument.

[00:25:45] Speaker 02:
It wasn't raised here in the briefing.

[00:25:48] Speaker 02:
The double jeopardy argument and double jeopardy

[00:25:55] Speaker 02:
Holdings from the Ninth Circuit don't really apply in these circumstances to this specific defendant, given his many removals and returns.

[00:26:07] Speaker 02:
They don't serve to stop the arrest at the prison gates, which the Ninth was concerned about in Meza, Villarejo, and Sanchez, Aguilar, given the facts and circumstances of this defendant, Mr. Herrera Salazar's past removal and returns.

[00:26:24] Speaker 05:
Can you tell me what the statute of limitations is on this, on 1326 crimes?

[00:26:30] Speaker 02:
I believe five years.

[00:26:32] Speaker 05:
Yeah.

[00:26:32] Speaker 05:
And when does that start to run?

[00:26:36] Speaker 05:
When the offense is committed?

[00:26:37] Speaker 02:
When the offense is committed.

[00:26:39] Speaker 02:
Your Honor.

[00:26:40] Speaker 05:
When are these offenses committed?

[00:26:42] Speaker 02:
There are a number of times when they're committed.

[00:26:44] Speaker 05:
Well, let's talk about in this case.

[00:26:45] Speaker 05:
This is committed.

[00:26:46] Speaker 02:
The found in case.

[00:26:47] Speaker 02:
Yes, when he is found in the United States.

[00:26:49] Speaker 05:
So when he's found in the United States, you have five years to prosecute.

[00:26:53] Speaker 02:
Yes, Your Honor.

[00:26:54] Speaker 05:
But what is the meaning of that statute of limitations if the very next day he can be found in the United States again, and the day after that, and the day after that?

[00:27:05] Speaker 05:
And really, any moment he's there, the statute of limitations is beginning to run anew.

[00:27:11] Speaker 05:
Isn't that right, under your theory?

[00:27:13] Speaker 02:
Yes, Your Honor.

[00:27:14] Speaker 05:
If that's when the crime is committed, that's nonsensical.

[00:27:17] Speaker 05:
There is no statute of limitations then.

[00:27:20] Speaker 02:
Well, Your Honor, he commits the offense when he's found in, and this Court and others... You're saying that is just ongoing.

[00:27:26] Speaker 05:
You don't have to have a separate deportation.

[00:27:28] Speaker 05:
He doesn't have to leave the country and come back in.

[00:27:30] Speaker 05:
He can be found in at any time, any day, day after day after day after day.

[00:27:38] Speaker 02:
Your Honor, this Court and others have found that the found in

[00:27:42] Speaker 02:
happens when it's brought to the attention of the immigration authorities.

[00:27:45] Speaker 05:
I understand that, but we're now talking about your argument, which is that this statute doesn't require the individual to leave and reenter in between, that you can rely on a previous reentry that's already been prosecuted.

[00:28:01] Speaker 05:
He's already been found in and prosecuted.

[00:28:03] Speaker 05:
And you're saying he can be found in again

[00:28:07] Speaker 05:
forever and ever and ever.

[00:28:08] Speaker 05:
There essentially is no statute of limitations on being found in under your theory, isn't that right?

[00:28:14] Speaker 02:
That is a fair characterization for this offense in these circumstances, Your Honor.

[00:28:19] Speaker 04:
Judge Murphy has a question.

[00:28:24] Speaker 00:
In the cases that you referenced where somebody was charged under the found in provision while they were still in prison,

[00:28:36] Speaker 00:
In any of those cases, was a due process defense raised?

[00:28:43] Speaker 02:
Your Honor, the cases I've found with respect to that was an argument against the sentencing enhancement of two levels being assessed against them, and those were upheld.

[00:28:54] Speaker 02:
I don't recall, as I stand here at this moment, whether due process was raised as a defense to that sentencing enhancement, but the sentencing enhancement has been

[00:29:07] Speaker 02:
assessed across circuits, including in this one.

[00:29:09] Speaker 05:
Well, in those cases, and I'm not familiar with them, are you saying they were in prison for another offense, not a 1326 offense?

[00:29:19] Speaker 05:
So we don't even know if in those cases they were being charged under 1326 for a deportation

[00:29:30] Speaker 05:
for which they'd already been charged.

[00:29:32] Speaker 05:
You see what I'm saying?

[00:29:32] Speaker 05:
Those cases don't necessarily involve this circumstance, right?

[00:29:36] Speaker 02:
Correct, Your Honor.

[00:29:37] Speaker 02:
None of them.

[00:29:38] Speaker 02:
Those imprisonments were generally, to my recollection, were for other offenses, not 1326.

[00:29:45] Speaker 05:
So there wasn't this issue about whether you have to leave the United States and reenter in order to be charged separately under the founding provision.

[00:29:52] Speaker 01:
Yes, Your Honor.

[00:29:53] Speaker 05:
And can you point to a single case where, other than the Ninth Circuit cases, which

[00:29:58] Speaker 05:
we've been discussing that have gone the other way, where someone's been prosecuted under your theory, which is you don't have to leave and reenter.

[00:30:10] Speaker 02:
Your Honor, in my brief, I do cite to a 10th Circuit case.

[00:30:14] Speaker 05:
It was... Yeah, but in that case, I think it's... We don't actually take up that issue.

[00:30:22] Speaker 05:
It's not clear whether... Nobody says whether they've left and reentered, right?

[00:30:26] Speaker 02:
No, that was not addressed in that case, but it was...

[00:30:30] Speaker 02:
Not specifically, no, Your Honor.

[00:30:33] Speaker 02:
Just one point that I do want to make in the remaining 20 seconds.

[00:30:36] Speaker 02:
My co-counsel said something about re-entering and continuing until you're found.

[00:30:43] Speaker 02:
A word that was left out is surreptitious re-entry.

[00:30:45] Speaker 02:
So this case is much more similar to Pima Jamie, where there is not a surreptitious re-entry.

[00:30:52] Speaker 02:
And I see that I'm out of time.

[00:30:53] Speaker 02:
So thank you.

[00:30:57] Speaker 04:
I agree to give you one minute of rebuttal, so I will do it.

[00:31:04] Speaker 04:
Hold on one sec.

[00:31:05] Speaker 04:
One minute.

[00:31:06] Speaker 01:
This one's fine.

[00:31:10] Speaker 01:
I think the court might have been referring to the Valencia Martinez, the unpublished case.

[00:31:15] Speaker 01:
That case, I think, is really distinguishable.

[00:31:17] Speaker 01:
First of all, it's not clear whether there was or was not a reentry.

[00:31:21] Speaker 01:
And it was a 2255 that included a 2255 waiver.

[00:31:27] Speaker 01:
It was pro se.

[00:31:28] Speaker 01:
I actually tried to look up the underlying pleadings and couldn't get access to them.

[00:31:33] Speaker 01:
So I don't really know how useful that case is.

[00:31:38] Speaker 01:
I think the Ninth Circuit cases are useful.

[00:31:41] Speaker 01:
And I would look at this court's Hernandez case, Hernandez Noriega, where it was one of those sentencing cases, the two-point criminal history bump.

[00:31:54] Speaker 01:
based off of guilty plea, but there they talk about the found in offense being a continuing offense and the found in is the completed crime occurs when the INS or whoever is the immigration officials are aware of the presence in the United States.

[00:32:13] Speaker 00:
Judge Murphy has a question.

[00:32:24] Speaker 00:
anticipated problem of a hypothetical arrest the moment somebody is released from prison.

[00:32:31] Speaker 00:
Correct.

[00:32:31] Speaker 00:
That's the purpose of those cases.

[00:32:33] Speaker 00:
Correct.

[00:32:34] Speaker 00:
All right.

[00:32:34] Speaker 00:
Well, isn't that problem solved by the ability of a defendant to raise a due process claim rather than a double jeopardy claim, in saying that he did not give due process because he was apprehended the moment he stepped out of the gate?

[00:32:54] Speaker 01:
I would agree, Your Honor, that that is an argument that could be raised.

[00:32:59] Speaker 01:
It was not raised and preserved below, and I did not argue it as plain error.

[00:33:04] Speaker 04:
Thank you.

[00:33:10] Speaker 04:
OK.

[00:33:10] Speaker 04:
We will take this matter under advisement.

[00:33:12] Speaker 04:
We appreciate your arguments.