United States of America v. Eduardo Duffy

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARDO DUFFY,
Defendant-Appellant.
No. 17-50414, 17-50415
D.C. No.
3:16-cr-02358-MMA-1
3:12-cr-03690-MMA-1
Southern District of California,
San Diego
ORDER AMENDING
MEMORANDUM AND
DENYING PETITION FOR
REHEARING AND PETITION
FOR REHEARING EN BANC
Before: D.W. NELSON and CALLAHAN, Circuit Judges, and KORMAN,*
District Judge.
The unpublished memorandum disposition filed on February 14, 2019 and
available at United States v. Duffy, 752 F. App’x 532 (9th Cir. 2019) is amended.
The superseding amended memorandum disposition will be filed concurrently with
this order.
With the memorandum disposition so amended, the panel has voted to deny
appellant’s petition for panel rehearing. Judge Callahan voted to deny the petition
for rehearing en banc and Judges Nelson and Korman so recommended.
* The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The full court has been advised of the petition for rehearing en banc and no
judge of the court has requested a vote on it. Fed. R. App. P. 35.
The petition for rehearing and petition for rehearing en banc are DENIED.
No further petitions for rehearing by the panel or en banc will be entertained.

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARDO DUFFY,
Defendant-Appellant.
No. 17-50414
D.C. No.
3:16-cr-02358-MMA-1
AMENDED MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARDO DUFFY, AKA Eduardo Duffy-
Carrasco,
Defendant-Appellant.
No. 17-50415
D.C. No.
3:12-cr-03690-MMA-1
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted February 12, 2019**
* 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
JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Pasadena, California
Before: D.W. NELSON and CALLAHAN, Circuit Judges, and KORMAN,***
District Judge.
Eduardo Duffy, a citizen of Mexico, appeals his conviction, following a jury
trial, for illegal reentry after deportation in violation of 8 U.S.C. § 1326 and the
revocation of his supervised release based on the illegal reentry conviction. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
Duffy argues that his underlying removal order based on his California Penal
Code (CPC) § 211 conviction was invalid because CPC § 211 is not an aggravated
felony under 8 U.S.C. § 1101(a)(43). This argument is foreclosed by our recent
decision in United States v. Martinez-Hernandez, 912 F.3d 1207 (9th Cir. 2019),
which held that CPC § 211 is an aggravated felony because it qualifies as a
categorical generic theft offense under 8 U.S.C. § 1101(a)(43)(G).
II
Duffy argues that his illegal reentry conviction was invalid because,
following Morales-Santana, he was “convicted under a law classifying on an
impermissible basis.” Sessions v. Morales-Santana, — U.S. — , 137 S. Ct. 1678,
1699 n.24 (2017). Duffy does not argue that the provisions declared
*** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.

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unconstitutional in Morales-Santana apply to him; rather, he sets forth a facial
equal protection challenge to 8 U.S.C. § 1326 under the Fifth Amendment’s Due
Process Clause.
“We review questions regarding the constitutionality of a statute de novo.”
See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).
In Morales-Santana, the Supreme Court held that “[t]he gender-based
distinction infecting §§ 1401(a)(7) and 1409(a) and (c) . . . violates the equal
protection principle” implicit in the Fifth Amendment’s Due Process Clause.
Morales-Santana, 137 S. Ct. at 1700–01. Rather than striking the entire statute,
the Supreme Court struck down only the one-year physical-presence exception for
unwed U.S.-citizen mothers and held that, going forward, 8 U.S.C. § 1401(a)(7)’s
five-year requirement for unwed U.S.-citizen fathers “should apply, prospectively,
to children born to unwed U.S.-citizen mothers.” Id. at 1701. Duffy’s facial equal
protection challenge rests upon the gender-based distinction in §§ 1401(a)(7) and
1409(a) and (c) held invalid by Morales-Santana.
The severability clause in the Immigration and Nationality Act (“INA”)
dictates that the remainder of 8 U.S.C. §§ 1401 and 1409 was not affected by
Morales-Santana. See 8 U.S.C. § 1101 note (“If any provision of this title . . . is
held invalid, the remainder of the title . . . shall not be affected thereby.”); see also
I.N.S. v. Chadha, 462 U.S. 919, 931–32 (1993) (declaring the veto clause of 8

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U.S.C. § 1254(c)(2) unconstitutional, but holding that the severability clause in 8
U.S.C. § 1101 “plainly authorized the presumption” that the remainder of the INA
stands. Duffy was properly convicted under 8 U.S.C. § 1326, which incorporates
definitions of “alien” and “citizen” that were not affected by Morales-Santana.
Thus, Duffy was not “convicted under a law classifying on an impermissible
basis.” Cf. Morales-Santana, 137 S. Ct. at 1699 n.24.
III
Duffy, who was born out of wedlock, argues that § 1409(a)’s requirement
that he show a blood relationship with his father violates the equal protection
principle because the same requirement is not imposed upon children who were
born in wedlock. 8 U.S.C. § 1409(a) (1952); United States v. Marguet-Pillado, 560
F.3d 1078, 1082 (9th Cir. 2009).
When evaluating the constitutionality of citizenship definitions that
discriminate on the basis of parents’ marital status, we apply intermediate scrutiny
to determine whether the distinctions are “substantially related” to “an important
governmental objective.” Morales-Santana, 137 S. Ct. at 1690, 1700 n.25. We are
bound by Tuan Ahn Ngyuen to reject Duffy’s challenge. Tuan Ahn Ngyuen v.
I.N.S., 533 U.S. 53 (2001). In Tuan Ahn Ngyuen, the Supreme Court held that the
requirements that the current version of § 1409 imposes on a child born out of
wedlock, which include the requirement to establish a blood relationship with her

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father, do not violate the equal protection principle because the requirements serve
two important governmental interests: 1) to ensure that a biological parent-child
relationship exists and 2) to ensure that the child and the citizen parent have an
opportunity to develop a relationship with each other and to the United States.
Tuan Anh Nguyen, 533 U.S. at 62–66; see also Miller v. Albright, 523 U.S. 420,
436–38 (1998); Fiallo v. Bell, 430 U.S. 787, 799 (1977). The Supreme Court then
concluded that the means employed by Congress were “substantially related to the
achievement of” the important governmental objectives. Tuan Anh Ngyuen, 533
U.S at 70.
We affirm Duffy’s illegal reentry conviction and the subsequent revocation
of supervised release.
AFFIRMED.

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