United States of America v. Oliver Bibiano-Mayo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OLIVER BIBIANO-MAYO,
Defendant-Appellant.
No. 20-50168
D.C. No.
3:19-mj-23205-FAG-BTM-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
Submitted April 11, 2022**
Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.
Oliver Bibiano-Mayo appeals from the district court’s order affirming his
guilty-plea conviction for attempted illegal entry, in violation of 8 U.S.C.
§ 1325(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Bibiano-Mayo contends that his conviction must be vacated because
* 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).
FILED
APR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-50168
§ 1325(a)(1) violates the non-delegation doctrine and because the district court did
not advise him at the plea hearing that knowledge of alienage is an element of the
offense. As he concedes, both of these claims are foreclosed. See United States v.
Melgar-Diaz, 2 F.4th 1263, 1266-69 (9th Cir. 2021) (holding that § 1325(a)(1)
does not violate the non-delegation doctrine), cert. denied, 142 S. Ct. 813 (2022);
United States v. Rizo-Rizo, 16 F.4th 1292 (9th Cir. 2021) (knowledge of alienage is
not an element of a § 1325(a)(1) offense).
AFFIRMED.

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