United States of America v. Jose Fermin Davalos-Martinez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE FERMIN DAVALOS-MARTINEZ,
Defendant - Appellant.
No. 12-50268
D.C. No. 3:11-cr-00134-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted July 10, 2013
Pasadena, California
Before: WARDLAW, BYBEE, and NGUYEN, Circuit Judges.
Jose Fermin Davalos-Martinez (“Davalos”) appeals his conviction following
a guilty plea to one count of attempted entry after deportation, in violation of 8
U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err in denying Davalos’s motion to dismiss the
FILED
AUG 16 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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indictment based on the alleged invalidity of the 1993 deportation order, because
the superseding indictment was based solely on the 2002 deportation, which is
separate and independent from the 1993 deportation. As Davalos concedes, the
2002 deportation did not reinstate the prior deportation order. Cf. United States v.
Arias-Ordonez, 597 F.3d 972, 982 (9th Cir. 2010) (holding that none of the
subsequent deportation orders provide an independent basis for conviction of
illegal reentry where the subsequent orders merely reinstated an invalid deportation
order). Instead, the 2002 deportation was based on Davalos’s entry into the United
States on or after February 18, 1993 without being “admitted or paroled after
inspection by an Immigration Officer.” Because Davalos’s reentry without being
admitted or paroled “constituted a deportable offense in its own right,” the 1993
deportation is irrelevant, regardless of its validity. See Hernandez-Almanza v. INS,
547 F.2d 100, 102–03 (9th Cir. 1976) (holding that the alien’s subsequent
deportation for entering the United States without inspection is “proper on its own
merits and may proceed” even if a prior deportation order is vacated). Davalos’s
argument that the 1993 deportation “tainted” the 2002 deportation is not supported
by any case law.
We need not and do not reach the remaining issues raised on appeal.
AFFIRMED.
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