NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50090 Plaintiff-Appellee, D.C. No. 3:18-cr-02624-H-1 v. MEMORANDUM* JOAQUIN MARIO CIPRIANO-ORTEGA, AKA Mario Cipriano-Ortega, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Submitted March 30, 2020** Pasadena, California Before: BEA and BADE, Circuit Judges, and McCALLA,*** District Judge. Joaquin Mario Cipriano-Ortega appeals his conviction and sentence for illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b), and argues that § 1326 is * 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 Jon P. McCalla, United States District Judge for the Western District of Tennessee, sitting by designation. facially unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review Cipriano-Ortega’s constitutional challenges de novo, see United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012); United States v. Hungerford, 465 F.3d 1113, 1116 (9th Cir. 2006), and we affirm.1 I. Cipriano-Ortega relies on Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), and argues that his conviction is constitutionally invalid because § 1326 relies upon the Immigration and Naturalization Act’s (“INA”) definition of “alien,” which impermissibly classifies on the basis of gender. In Morales-Santana, the Supreme Court held that the statutory scheme at 8 U.S.C. §§ 1401(a)(7), 1409(a), and 1409(c)—which provided different physical-presence requirements for unwed mothers and unwed fathers to confer citizenship on their children born abroad— violated the Constitution’s equal protection guarantees because it impermissibly relied on gender-based distinctions. 137 S. Ct. at 1700–01. Because of this constitutional infirmity, the Court struck down the portions of the statutes that allowed for a shorter physical-presence requirement for unwed mothers. Id. at 1 The government argues that we should review Cipriano-Ortega’s challenges for plain error because he did not assert his constitutional challenges before the district court. See Chi Mak, 683 F.3d at 1133 (“[C]onstitutional issues not originally raised at trial are reviewed for plain error.”). Because we find that Cipriano-Ortega’s constitutional challenges fail under de novo review, we do not need to decide whether he could establish plain error. 2 1701. Cipriano-Ortega argues that § 1326 relies on a definition of “alien” in the INA that impermissibly discriminates based on gender and, therefore, his conviction must be reversed. Cipriano-Ortega’s argument is foreclosed by this court’s recent decision in United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020). In Mayea-Pulido, the court rejected the argument that “by invalidating the citizenship statute at 8 U.S.C. § 1409(c), Morales-Santana invalidated the entire definition of ‘alienage’ in the [INA].” Id. at 1066 n.10. The court also noted that, in making this argument, the defendant “offer[ed] no explanation as to why § 1326 cannot be ...
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