In United States v. Gambino-Ruiz, --- F.4th ---, No. 21-50303 (9th Cir. 2024), the Court affirmed José Gambino-Ruiz’s conviction and sentence for illegal reentry under 8 U.S.C. § 1326 in a case in which he argued (1) the removal order that served as the basis for that charge—an expedited removal—was improper under the Immigration and Nationality Act; and (2) the district judge considered impermissible factors in denying a downward sentencing adjustment for acceptance of responsibility.
In his collateral attack under 8 U.S.C. § 1326(d), Gambino-Ruiz maintained that his 2013 removal violated his due process rights because he was not inadmissible on grounds that authorize expedited removal, and thus could not be placed in expedited removal proceedings.
In a complex opinion addressing the relevant statutory interplay and fictive legal states, the Court rejected his claim. It is very hard to summarize the Court's analysis, so I'll just share its conclusion:
We conclude that Gambino-Ruiz was inadmissible under § 1182(a)(7) and therefore properly subject to expedited removal under § 1225(b)(1)(A)(i). The theory Gambino-Ruiz propounds overreads the significance of our decision in Torres and would “create a perverse incentive to enter at an unlawful rather than a lawful location.” This was the precise situation that Congress intended to do away with by enacting the Illegal Immigration Reform and Immigrant Responsibility Act. We refuse to interpret the INA in a way that would in effect repeal that statutory fix. We hold that the government did not violate Gambino-Ruiz’s due process rights when it removed him via expedited proceedings in 2013. He was properly convicted of illegal reentry under 8 U.S.C. § 1326.
As to his argument for acceptance of responsibility after trial, the Court held: "Gambino-Ruiz has not persuaded us that his was the rare circumstance where the adjustment for acceptance of responsibility is due after the defendant has proceeded to trial. Although he confessed his illegal status when he was most recently apprehended, he sought to suppress those inculpatory statements pre-trial. Apart from his pre-trial decisions, he continued to contest his guilt during trial by attempting to negate a key element of the offense, namely his alienage. His motive at trial was clearly beyond merely 'preserv[ing] issues that do not relate to factual guilt.' U.S.S.G. § 3E1.1 cmt. 2. We therefore affirm the district judge’s denial of the acceptance-of-responsibility adjustment and Gambino-Ruiz’s sentence."
