United States of America v. ABEL PENA-SILVA, AKA Fernando Pena-Silva, AKA Fernando Zaragoza- Torres

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABEL PENA-SILVA, AKA Fernando
Pena-Silva, AKA Fernando Zaragoza-
Torres,
Defendant - Appellant.
No. 12-50579
D.C. No. 2:12-cr-00402-GAF-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO RODRIGUEZ-MANZO,
Defendant - Appellant.
No. 12-50581
D.C. No. 2:12-cr-00403-GAF-1
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
FILED
JAN 09 2014
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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Submitted January 6, 2014**
Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
1. We need not decide whether the immunity agreements were valid.
Assuming for purposes of argument that they were, the agreements unambiguously
applied only to convictions under 8 U.S.C. § 1325. The agreements specified that
they did not provide immunity for “any offense not explicitly stated above,” and
“Title 8, United States Code, article 1325” was the only listed offense. As both
defendants were charged only with violating 8 U.S.C. § 1326, the agreements, even
if valid, would not bar their convictions.
2. The government did not violate defendants’ right to counsel. Aliens held
in immigration custody may be represented by counsel, but they do not have a right
to appointed counsel. See 8 U.S.C. § 1229a(b)(4)(A); Magallanes-Damian v.
I.N.S., 783 F.2d 931, 933 (9th Cir. 1986). Defendants were in administrative
custody in connection with removal proceedings. Neither the initial transmission
of the immunity agreement, nor their contact with staff from the Federal Public
Defender’s office, altered the status of their detention. There is no evidence that
the government prevented defendants from communicating with counsel.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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3. The government did not violate Federal Rule of Criminal Procedure 5(a).
Rule 5 does not apply to individuals detained in civil immigration proceedings.
United States v. Cepeda-Luna, 989 F.2d 353, 358 (9th Cir. 1993). Once the
criminal complaint was filed, the defendants were immediately presented to a
magistrate and appointed counsel. Finally, the government did not violate
defendants’ Fourth or Fifth Amendment rights.
AFFIRMED.

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