FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10614 Plaintiff-Appellee, D.C. No. v. CR 10-414 RMW EVELYN SINENENG-SMITH, Defendant-Appellant. OPINION Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding Argued and Submitted April 18, 2017 San Francisco, California Reargued and Resubmitted February 15, 2018 Pasadena, California Filed December 4, 2018 Before: A. Wallace Tashima, Marsha S. Berzon, and Andrew D. Hurwitz,* Circuit Judges. Opinion by Judge Tashima * Judge Reinhardt, who was originally a member of this panel, died after this case was reargued and resubmitted for decision. Judge Hurwitz was randomly drawn to replace him. Judge Hurwitz has read the briefs, reviewed the record, and watched video recordings of the oral arguments. 2 UNITED STATES V. SINENENG-SMITH SUMMARY** Criminal Law The panel reversed the district court’s judgment with respect to the defendant’s convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i); vacated the defendant’s sentence; and remanded for resentencing. The panel held that subsection (iv) – which permits a felony prosecution of any person who “encourages or induces” an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law – is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression. In a concurrently filed memorandum disposition, the panel affirmed the judgment with respect to the defendant’s convictions on two counts of mail fraud in violation of 18 U.S.C. § 1341. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. SINENENG-SMITH 3 COUNSEL Daniel F. Cook (argued), Bodega Bay, California, for Defendant-Appellant. Susan B. Gray (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Section; United States Attorney’s Office, San Francisco, California; Elizabeth D. Collery (argued), Attorney, Criminal Division; John P. Cronan, Principal Deputy Assistant Attorney General; Kenneth A. Blanco, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee. Mark C. Fleming (argued) and Megan E. Barriger, Wilmer Cutler Pickering Hale & Dorr LLP, Boston, Massachusetts; Beth C. Neitzel, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, D.C.; for Amici Curiae Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild. Annie Hudson-Price (argued) and Mark Rosenbaum, Public Counsel, Los Angeles, California, for Amicus Curiae Public Counsel. Stephen R. Sady (argued), Chief Deputy Federal Public Defender; Lisa Ma, Research and Writing Attorney, Portland, Oregon; Carmen A. Smarandoiu, Assistant Federal Public Defender, San Francisco, California; for Amicus Curiae Federal Defender Organizations of the Ninth Circuit. 4 UNITED STATES ...
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