FILED NOT FOR PUBLICATION JUN 18 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50195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 2 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 ...
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