FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-10233 Plaintiff-Appellant, D.C. Nos. 3:20-cr-00026- v. MMD-WGC-1 3:20-cr-00026- GUSTAVO CARRILLO-LOPEZ, MMD-WGC Defendant-Appellee. OPINION Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding Argued and Submitted December 8, 2022 Pasadena, California Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. Opinion by Judge Ikuta 2 UNITED STATES V. CARRILLO-LOPEZ SUMMARY* Criminal Law In a case in which the government charged Gustavo Carrillo-Lopez, a citizen of Mexico, with illegally reentering the United States following prior removal in violation of 8 U.S.C. § 1326, the panel reversed the district court’s order granting Carrillo-Lopez’s motion to dismiss the indictment on the ground that § 1326 violates the equal protection guarantee of the Fifth Amendment and is therefore facially invalid. Carrillo-Lopez asserted that § 1326 violates the Fifth Amendment because it discriminates against Mexicans and other Central and South Americans. The district court held that Carrillo-Lopez established that § 1326 was enacted with a discriminatory purpose, and that the government failed to prove that § 1326 would have been enacted absent such motive. Because Carrillo-Lopez’s equal protection challenge fails even under the usual test for assessing such claims set forth in Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977), the panel declined to address whether immigration laws should be evaluated through a more deferential framework. As drafted, § 1326 is facially neutral as to race. The panel therefore turned to the question whether Carrillo- * 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. CARRILLO-LOPEZ 3 Lopez carried his burden of showing that racial discrimination was a motivating factor in enacting § 1326. Because the most important evidence of legislative intent is the relevant historical evidence, the panel started with the history of § 1326, which was enacted in 1952 as part of the Immigration and Nationality Act (INA). The panel disagreed with Carrillo-Lopez’s argument that a Senate Report, the basis for the 1952 legislation, is replete with racism. The panel held that the district court clearly erred when it relied on Congress’s decision to override President Truman’s veto of the INA as evidence that § 1326 was enacted in part by discriminatory animus. The panel rejected as attenuated Carrillo-Lopez’s contention that Congress’s intent to discriminate against Mexicans and other Central and South Americans can be inferred from the Department of Justice’s use of the word “wetback” in a letter commenting on the INA. The panel then addressed the legislative history of a prior immigration law, the Act of March 4, 1929 (“the 1929 Act”), which the parties did not dispute was motivated in part by racial animus against Mexicans and other Central and South Americans. The panel rejected Carrillo-Lopez’s arguments, with which the district court largely agreed, that (1) the discriminatory purpose …
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