United States v. Zamudio

Under 8 U.S.C. § 1326, no prejudice arises if the defendant cannot collaterally attack the underlying removal proceeding, and the five-year statute of limitations does not begin to run until the government has knowledge of the defendant’s illegal presence in the United States.

Following Hermilo Palmerin Zamudio’s convictions for kidnapping and possession of methamphetamine, an Immigration Judge ordered Zamudio removed from the United States. Zamudio reentered the U.S. by presenting an invalid green card to immigration authorities. When Zamudio’s illegal presence in the U.S. was discovered, he was indicted under 8 U.S.C. § 1326 for reentering without permission. The district court denied a motion to dismiss the indictment in which Zamudio challenged the removal order and his assistance of counsel. At trial, Zamudio argued that the five-year statute of limitations under § 1326 had already run at the time of his indictment. Zamudio was found guilty and sentenced to prison. On appeal, the Ninth Circuit held that Zamudio failed to collaterally attack the underlying removal proceeding. The panel therefore held that Zamudio suffered no prejudice because the nature of his crimes made him ineligible for relief, and his counsel provided effective assistance under the Strickland v. Washington standard of reasonableness because “attorneys are not expected to make arguments based on cases not yet decided.” Additionally, since Zamudio presented an invalid green card to immigration authorities, the government did not have knowledge of his illegal presence, and the statute of limitations did not begin to run until officials discovered him years later. AFFIRMED.