UNITED STATES of America, Plaintiff-Appellee, v. Refugio AGUSTIN-PINEDA, Defendant-Appellant.
Decided: December 07, 2020
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Matthew F. Duggan, Assistant U.S. Attorney, USSP - Office of the U.S. Attorney, USSP - Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee Dan Bruce Johnson, Attorney, Law Office of Dan B. Johnson, P. S., Spokane, WA, for Defendant-Appellant
Refugio Agustin-Pineda appeals from the district court's judgment and challenges his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Agustin-Pineda contends that the immigration judge lacked jurisdiction to issue the removal order underlying his conviction, and therefore that the district court should have granted his motion to dismiss the indictment. We review de novo the denial of a motion to dismiss an indictment based on alleged due process defects in the underlying deportation proceeding. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004).
As Agustin-Pineda concedes, his argument that the lack of a time and date on his Notice to Appear divested the immigration judge of jurisdiction over his underlying removal proceedings is foreclosed by our opinion in Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019), cert. denied sub nom. Karingithi v. Barr, ––– U.S. ––––, 140 S. Ct. 1106, 206 L.Ed.2d 179 (2020). Notwithstanding Agustin-Pineda's assertion that Karingithi was wrongly decided, it controls our decision here. See United States v. Boitano, 796 F.3d 1160, 1164 (9th Cir. 2015) (“[A]s a three-judge panel we are bound by prior panel opinions and can only reexamine them when the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority.” (internal quotation marks omitted)). Accordingly, the district court did not err in denying the motion to dismiss the indictment.
Was this helpful?
Response sent, thank you
Welcome to FindLaw's Cases & Codes
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.