United States v. Joaquin Cipriano-Ortega


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50090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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