[00:00:02] Speaker 02:
Good morning, Counsel.

[00:00:03] Speaker 02:
Good morning, Your Honor.

[00:00:06] Speaker 02:
May it please the Court, Assistant Federal Defender Lee Tucker appearing for Matteo Juan Diego.

[00:00:12] Speaker 02:
I will reserve two minutes for rebuttal and I will keep an eye on the clock.

[00:00:17] Speaker 02:
Thank you.

[00:00:17] Speaker 02:
Your Honors, contrary to the government's assertion at page 26 of the answering brief, there is no inconsistency or lack of clarity in this circuit's jurisprudence.

[00:00:29] Speaker 02:
on the issue before us regarding the elements required for a conviction under 8 USC 1326.

[00:00:35] Speaker 02:
Excuse me.

[00:00:38] Speaker 02:
And there has been no confusion since 2006 when this court in USV Salazar Gonzalez clarified and emphasized that Section 1326 requires proof beyond a reasonable doubt, both of a voluntary entry

[00:00:58] Speaker 02:
the actus reus, and of the knowing mens rea, that the person is aware that they are in the United States, that they have entered the United States, or if they're later found in, that they are aware and are staying there, knowing that they are there.

[00:01:15] Speaker 00:
One of the questions he was asked during the plea colloquy is whether he admitted that you returned to the United States without authorization.

[00:01:26] Speaker 00:
Yes.

[00:01:27] Speaker 00:
How do you admit that you return to the United States if you think you're in Mexico?

[00:01:35] Speaker 02:
Well, the issue, Your Honor, is not... Clearly, once he was arrested and taken into custody, he knew he was in the United States.

[00:01:45] Speaker 02:
The circuit has recognized the possibility of an inadvertent entrance.

[00:01:51] Speaker 02:
an unknowing entrance, and that could have been the case here.

[00:01:54] Speaker 02:
And again, the issue we really need to focus on is, had he been properly advised, might he have decided to exercise his Sixth Amendment trail right?

[00:02:04] Speaker 00:
We review this through plain error.

[00:02:05] Speaker 00:
Yes, Your Honor.

[00:02:06] Speaker 00:
And so we get to look more broadly at the record, and it's not with the same scrutiny that we would do if this had been raised, you know, on direct appeal.

[00:02:17] Speaker 00:
And so looking at the

[00:02:19] Speaker 00:
complete facts, what's said in the transcript and his interaction with the officer.

[00:02:25] Speaker 00:
It seems hard to find any basis to be worried about whether he thought he was in the United States.

[00:02:32] Speaker 02:
Well, and just to clarify, we are on plain error review.

[00:02:36] Speaker 02:
We are on this direct appeal from the district court.

[00:02:39] Speaker 02:
It is plain error review.

[00:02:40] Speaker 02:
Yes.

[00:02:43] Speaker 02:
So it's clear that there was error and it was plain.

[00:02:45] Speaker 02:
The issue is then does it

[00:02:47] Speaker 02:
involve the substantial prejudice to Mr. Juan Diego that would require that his conviction be vacated.

[00:02:54] Speaker 02:
And again, I want to go back to focusing on the issue and as the Supreme Court instructed in Dominguez Benitez, it doesn't matter if the choice to go to trial might have been, I believe the language is, a foolish choice.

[00:03:10] Speaker 02:
The issue is whether or not

[00:03:13] Speaker 02:
knowing the elements might have made a difference to the defendant's calculation and strategic decision to plead guilty versus go to trial.

[00:03:24] Speaker 01:
Counsel, as a district judge, one of the things that troubles me about this case, and you may be right, and we may be reversing here, is that defense counsel hearing this colloquy could have stepped right in and said, Your Honor, I don't believe you've covered this and this.

[00:03:43] Speaker 01:
Couldn't that have occurred here?

[00:03:44] Speaker 02:
That could have occurred here, Your Honor.

[00:03:47] Speaker 02:
I think, and I think that underscores the necessity for the court to rule in this case and rule in Mr. Juan Diego's favor, because although the law has been clear since 2006 that both elements are required, there is no requirement that it be alleged in the indictment.

[00:04:05] Speaker 02:
And I think that there is

[00:04:08] Speaker 02:
the practice of inquiring as to this element has not been firmly implemented.

[00:04:15] Speaker 02:
But absolutely, had defense counsel been thinking about this, they could have stepped in.

[00:04:21] Speaker 04:
And it could have been easily remedied, because the district court could have specifically asked the question.

[00:04:28] Speaker 04:
And so that's why it's difficult to say that there's plain error in this case, because the district court was not given the opportunity to remedy

[00:04:38] Speaker 04:
the, uh, asserted violation.

[00:04:41] Speaker 02:
Well, yes, Judge Rawlinson, but also that's not really the standard that we need to look at here because the issue isn't, could the district, right?

[00:04:49] Speaker 02:
We're on plain error.

[00:04:50] Speaker 02:
So we already are on our back foot as we come forward with, with this issue.

[00:04:54] Speaker 02:
But the issue is, so understand we're on plain error.

[00:04:59] Speaker 02:
The issue is, had he been informed, might that have made a difference?

[00:05:03] Speaker 02:
And here we have someone who came in, it was dark.

[00:05:06] Speaker 02:
There's discrepancies in the record as to where he was when he was arrested, but we know it was dark and it was in the desert in the border area.

[00:05:15] Speaker 04:
So your argument is on that we should assume that he didn't know he was in the United States?

[00:05:22] Speaker 02:
No, your honor.

[00:05:23] Speaker 02:
Thank you.

[00:05:23] Speaker 02:
My argument is we don't need to question that.

[00:05:27] Speaker 02:
That would be for the jury.

[00:05:28] Speaker 02:
What we need to consider is if he'd known this, might he have decided to

[00:05:34] Speaker 02:
exercise his constitutional right to trial and have a jury decide.

[00:05:37] Speaker 02:
And here we have that- Had he known what?

[00:05:40] Speaker 02:
Had he known that the government would have to prove to a jury beyond a reasonable doubt that he knew he was in the United States when he was arrested.

[00:05:51] Speaker 04:
And we have a very confused, excuse me- Do we have anything in the record that would support a conclusion that had he known

[00:06:00] Speaker 04:
that the government had to prove that he was aware he was in the United States, he would have gone to trial.

[00:06:05] Speaker 04:
What is there on the record to support that?

[00:06:07] Speaker 02:
We don't need to convince the court that he would have gone to trial.

[00:06:11] Speaker 04:
Does there have to be some indication in the record of that?

[00:06:15] Speaker 04:
Yes.

[00:06:15] Speaker 04:
And what is the indication in the record?

[00:06:17] Speaker 04:
Because oftentimes we'll have a declaration

[00:06:20] Speaker 04:
from the defendant if he pleads guilty and he says, I would not have pleaded guilty if my counsel had told me this.

[00:06:25] Speaker 04:
I would not have pleaded guilty if I had known that.

[00:06:28] Speaker 04:
Do we have anything like that in the record?

[00:06:29] Speaker 02:
Well, Your Honor, if we end up not prevailing on direct appeal and return on a 2255, we may have that.

[00:06:35] Speaker 02:
But as we sit here today.

[00:06:37] Speaker 02:
And as we sit here today, we don't have anything outside of the record.

[00:06:40] Speaker 02:
What we have in the record, as is discussed in the briefing,

[00:06:45] Speaker 02:
He had a very small trial penalty here.

[00:06:47] Speaker 02:
This is not a standard case where he got a great break from a plea agreement.

[00:06:51] Speaker 02:
He didn't have a plea agreement.

[00:06:53] Speaker 02:
The gap between his range pleading guilty and his range, had he been adjudicated guilty by a jury, there was a gap of three months.

[00:07:04] Speaker 02:
It was 24 to 30 if he pleaded, 33 to 41 if he were to go to trial and be convicted.

[00:07:10] Speaker 02:
We have someone who doesn't speak Spanish very well, was, as I said, arrested in this remote area.

[00:07:19] Speaker 00:
But when he was arrested, he was with a group of more than 30 people and assaulted the immigration officer who tried to arrest him.

[00:07:30] Speaker 00:
If you step back and look at the larger picture, I mean,

[00:07:36] Speaker 00:
and particularly plain error and the final discretionary factor.

[00:07:39] Speaker 00:
It's just, it's hard to be worried that there is an injustice here that he really didn't know and that it really would have made a difference on his third conviction for re-entry into the United States that this would have made a difference.

[00:07:52] Speaker 00:
It seems hard to see.

[00:07:54] Speaker 02:
I'm glad you mentioned that, the fact that it's his third title eight offense, your honor.

[00:07:59] Speaker 02:
I did want to point out too, because I'm in that regard and the government mentions this, you know, he's been around the block.

[00:08:05] Speaker 02:
He knows what's going on.

[00:08:06] Speaker 02:
That's not really supported by this particular record, given the language barrier and given the nature of those two prior interactions.

[00:08:16] Speaker 02:
One was a streamlined case, which you're all familiar with.

[00:08:20] Speaker 02:
It's the same day in, plead, et cetera.

[00:08:22] Speaker 02:
There's no indication he had a Kanhubal interpreter.

[00:08:26] Speaker 02:
And the other case out of Connecticut, he had a Kanhubal interpreter, but we don't have any indication from the record whether he was advised.

[00:08:34] Speaker 02:
He probably never has been told that the government had to prove these elements.

[00:08:38] Speaker 02:
And he has the right, just like anyone in this country, to exercise his constitutional right to a jury trial if he thinks that might be best, even if many of us would think that's a foolish choice.

[00:08:50] Speaker 02:
That's not the test.

[00:08:51] Speaker 02:
So unless there's anything further at the moment.

[00:08:54] Speaker 02:
I just wanted to ask you, how far into the country was he when he was detained?

[00:09:00] Speaker 02:
That's a good question.

[00:09:01] Speaker 02:
So the record shows three different possibilities.

[00:09:06] Speaker 02:
Nogales, which is right on the border, is what the Department of Homeland Security report says.

[00:09:11] Speaker 02:
Amado, which is 10 miles in, is what the indictment and the plea colloquy said.

[00:09:16] Speaker 02:
And then Aravaca, which is 20 miles in, is what the pre-sentence report said.

[00:09:21] Speaker 04:
So that adds to the- But don't we have cases, though, that say the further they are from the border, the more likely it is that they know that they're in the country?

[00:09:30] Speaker 02:
In the context, this area, there's no difference in the terrain between Nogales and Aravaca.

[00:09:38] Speaker 02:
If you're in the desert, it's the same in Mexico as it is in the US.

[00:09:42] Speaker 02:
So that line of cases, like for example, that's not like being in San Diego.

[00:09:46] Speaker 02:
It's the same terrain.

[00:09:48] Speaker 02:
And with that, I will reserve my remaining few seconds.

[00:09:51] Speaker 02:
All right, thank you, counsel.

[00:09:51] Speaker 02:
We'll give you a minute for rebuttal.

[00:09:52] Speaker 04:
Thank you, your honor.

[00:09:53] Speaker 04:
I'll help take you over.

[00:09:54] Speaker 04:
All right, take you down.

[00:09:55] Speaker 04:
Thank you.

[00:09:55] Speaker 04:
Thank you.

[00:10:04] Speaker 03:
Good morning.

[00:10:04] Speaker 03:
May it please the court, I'm Chris Cabaneas from the District of Arizona on behalf of the United States.

[00:10:11] Speaker 03:
I'd like to explain first why there's no error at all here.

[00:10:14] Speaker 03:
I think that what's happening is the defendant with the use of Salazar-Gonzalez is conflating what's necessary for somebody who is going to trial and jury instructions with what does somebody need to know before they plead guilty.

[00:10:26] Speaker 03:
And this court's cases address that first bit.

[00:10:31] Speaker 03:
This court said in Rivera-Sillas, for example,

[00:10:34] Speaker 03:
that as defense counsel acknowledges, you do not need to charge the mens rea in a 1326 founding indictment.

[00:10:43] Speaker 03:
And that's because over fifty years ago in Pena Cabaneas, no relation, this court said that

[00:10:51] Speaker 03:
It's a regulatory offense.

[00:10:52] Speaker 03:
There's general intent.

[00:10:54] Speaker 03:
And when you charge somebody with found in, you do not need to include any mens rea on either voluntariness or that he knew he was in the United States.

[00:11:03] Speaker 03:
As a matter of fact, those arguments were raised in Riverusius.

[00:11:06] Speaker 03:
And this court said, we're comfortable presuming that a defendant who's found in the United States

[00:11:11] Speaker 03:
willfully and knowingly acted in order to enter this country.

[00:11:14] Speaker 03:
Therefore, alleging that the defendant is a deported alien, subsequently found in the United States without permission, is sufficient to allege general intent.

[00:11:23] Speaker 04:
Is this a found-in case?

[00:11:25] Speaker 03:
It is.

[00:11:26] Speaker 03:
Okay.

[00:11:26] Speaker 03:
Yes.

[00:11:26] Speaker 03:
And you know, this court also, in Gideon's Rabadon, the exact same elements were the ones that the defendant was advised of when he pled guilty.

[00:11:37] Speaker 03:
And this court said that he had enough notice with the indictment, which is exactly what happened in this case.

[00:11:42] Speaker 03:
The magistrate judge complied with this court's decisions to a T. There is absolutely no error here.

[00:11:47] Speaker 03:
And also, Salzar Gonzalez says, to act with general, and that's the case the defendant relies on the most,

[00:11:52] Speaker 03:
To act with general intent, a defendant must know the facts that make his actions illegal.

[00:11:57] Speaker 03:
He did know that because he was asked to read the indictment.

[00:12:00] Speaker 03:
And to a point that Judge Collins mentioned earlier about the record, you're correct that you can consider the whole record, and I wanted to mention a few things that the defendant already knew before he even arrived at the change of plea that day.

[00:12:11] Speaker 03:
This court may recall that the defendant was convicted of unlawful restraint after having tried to lure a seven-year-old girl off the porch of her house, and luckily she got away, but he was deported in 2014.

[00:12:21] Speaker 03:
He came back and he was found guilty of unlawfully being in the United States, and he admitted he was unlawfully in the United States.

[00:12:28] Speaker 03:
And my point here is he kind of gets this charge before he even gets here to the change of plea.

[00:12:34] Speaker 03:
Then he comes back in 2020.

[00:12:36] Speaker 03:
He's convicted in the district of Connecticut, and he pled guilty to the same crime.

[00:12:42] Speaker 03:
And I respectfully disagree with my buddy Lee that there is actually record that he was given the same elements when he pled guilty to that district of Connecticut charge.

[00:12:52] Speaker 03:
And we have that in our brief, and we gave you that plea agreement that shows that.

[00:12:56] Speaker 03:
Then after three months of being, he was removed, three months later, he comes back.

[00:13:01] Speaker 03:
And he then is found in Arizona.

[00:13:04] Speaker 03:
And actually, he is found north of, and it's not inconsistent, by the way.

[00:13:07] Speaker 03:
He makes a statement at the time he's arrested that he crossed in Nogales.

[00:13:11] Speaker 03:
And, you know, he's found four days later north of and near Amado.

[00:13:15] Speaker 03:
And he admits that he was found near Amado when he pled guilty in this case.

[00:13:20] Speaker 04:
Counsel, I was looking at the amended judgment, and it says he was adjudicated guilty of reentry of removed alien.

[00:13:28] Speaker 04:
That's different than founding, isn't it?

[00:13:31] Speaker 03:
Well, entry slash found in, because he pled guilty to found in.

[00:13:36] Speaker 03:
And that's the one that, you know, when you look at it.

[00:13:39] Speaker 04:
But the judgment says he's adjudicated guilty of reentry of removed alien.

[00:13:44] Speaker 04:
So don't we have to go back to what the judgment says?

[00:13:48] Speaker 03:
Well, if there's any dispute about that,

[00:13:52] Speaker 04:
there could be a change

[00:14:10] Speaker 04:
I'm just telling you what the judgment says.

[00:14:13] Speaker 03:
Re-entry of a removed alien is this crime.

[00:14:16] Speaker 03:
I mean, it is re-entry, but that doesn't alter the fact that it's the same type of... Being found in is a different offense.

[00:14:21] Speaker 04:
Being found in is different than re-entering.

[00:14:26] Speaker 03:
I'm sorry.

[00:14:26] Speaker 03:
I'm going by how the defendant pled, I guess.

[00:14:29] Speaker 03:
And so if the judgment is in it...

[00:14:32] Speaker 04:
what he was adjudicated guilty of, his offense.

[00:14:38] Speaker 04:
Where in the record do you see where?

[00:14:42] Speaker 03:
It's found in, yeah, his change of plea colloquy and that's at ER 19 to 20.

[00:14:46] Speaker 03:
He admits that he was voluntarily present.

[00:14:49] Speaker 03:
It's also my understanding, the court asks him after the court verifies that he was an alien present in the United States, the court says it's also my understanding that you were removed from the United States.

[00:14:59] Speaker 03:
What page you on?

[00:15:00] Speaker 03:
Oh, ER 19 to 20, but I'm actually probably quoting from my answering brief.

[00:15:05] Speaker 03:
That's 19.

[00:15:08] Speaker 01:
The indictment also says entered and was found in.

[00:15:11] Speaker 03:
Yes, you charge in the conjunctive, you can prove in the disjunctive.

[00:15:16] Speaker 04:
The judgment is the official adjudication of guilt and that's why I'm having some difficulty because

[00:15:25] Speaker 03:
It doesn't alter, though, the mens re issue.

[00:15:27] Speaker 03:
And that's, you remember, the defendant is arguing that he did not have adequate understanding of the charge.

[00:15:33] Speaker 03:
And this court has said that if somebody is pleading guilty to the found in, and there's no, the only difference would it would be entry is you still have voluntariness, but he admitted he was voluntarily here.

[00:15:45] Speaker 03:
And that's what I want to read to you.

[00:15:46] Speaker 03:
And it's from that part.

[00:15:47] Speaker 04:
Well, first I want to read you something.

[00:15:49] Speaker 03:
Sure.

[00:15:49] Speaker 04:
On page 21, line five.

[00:15:52] Speaker 03:
Of the excerpts of the record?

[00:15:53] Speaker 04:
Uh-huh.

[00:15:54] Speaker 04:
Mr. Juan, how do you plead to the felony offense of reentry of removed alien, guilty or not guilty?

[00:16:01] Speaker 04:
And he said guilty.

[00:16:03] Speaker 04:
That's what he pled to.

[00:16:06] Speaker 03:
Your Honor, I think that's probably the use of the vernacular more than what's... But we have to go by what's in the record, counsel.

[00:16:12] Speaker 04:
But I guess I would ask, legally, there would be no difference when it comes to... All right, then why don't you tell us why it wouldn't make a difference if the offense is reentry?

[00:16:22] Speaker 04:
cite us some cases that talk about reentry of removed alien as opposed to found in because they are different.

[00:16:29] Speaker 03:
Well, the cases that I'm relying on are the ones that talk about how when somebody is found in the United States is part of being guilty.

[00:16:39] Speaker 03:
You have to be here.

[00:16:41] Speaker 04:
And so when you totally separate crimes, I've done, I've done a lot of cases on this and it's a distinct crime being found in.

[00:16:51] Speaker 04:
is different than re-entering, because you have to prove actual entry into the country for re-entry.

[00:16:57] Speaker 04:
And founding, you don't have to prove that.

[00:17:00] Speaker 04:
And so there are two different cases.

[00:17:01] Speaker 04:
So do you have a case that discusses re-entry of removed alien and what the mens rea is for that?

[00:17:10] Speaker 03:
Your Honor, I'll tell you what.

[00:17:12] Speaker 03:
I'm going to file a letter after argument.

[00:17:14] Speaker 03:
Well, don't file a letter unless we ask you.

[00:17:16] Speaker 04:
We're asking you right now.

[00:17:19] Speaker 04:
on what the law is.

[00:17:21] Speaker 03:
I think that the Gadena-Rabidon case is still and this is okay so Gadena-Rabidon is one of this court's cases and it says during the change of plea

[00:17:34] Speaker 03:
Hearing the district court twice informed Godinus to convict him under 1326A, the government would have to prove he is an alien.

[00:17:40] Speaker 03:
In other words, they're not making the distinction here when it comes to adequate mens rei.

[00:17:44] Speaker 03:
And when you read the indictment, as long as you're covering the statutory elements and Godinus Rabadan, they got the same elements that this defendant got here.

[00:17:52] Speaker 03:
And this court said that that's enough on the face of the indictment.

[00:17:56] Speaker 03:
This court in Sanchez Torres also said that 1326 has two elements.

[00:18:02] Speaker 03:
So, it's not a tempted illegal reentry where there's specific intent, conscious desire.

[00:18:07] Speaker 03:
We're talking about founding and I think that even when it comes to... We're not talking about founding, counsel.

[00:18:12] Speaker 03:
I'm not talking about founding.

[00:18:13] Speaker 03:
Okay, but... Maybe you are, but I'm not.

[00:18:14] Speaker 03:
Well, I'll tell you.

[00:18:15] Speaker 03:
What I think, though, Your Honor, is that it's a distinction without a legal difference here.

[00:18:20] Speaker 03:
And what I mean by that is, and this is the sentence that I'd like to read it, he asks the judge, asks the defendant, that you were voluntarily present and found here in the United States near Amado and you didn't obtain the express consent.

[00:18:32] Speaker 03:
And remember, the argument here is not that this is reentry versus found him.

[00:18:38] Speaker 03:
The argument was he didn't know where he was in the United States.

[00:18:42] Speaker 03:
So that's the argument that I think has been raised.

[00:18:44] Speaker 04:
So he didn't know that he had reentered the United States.

[00:18:46] Speaker 04:
That's the argument that opposing counsel is made.

[00:18:49] Speaker 04:
is making that he wasn't told that he had to know that he had reentered the United States.

[00:18:55] Speaker 04:
That's the argument that she's making.

[00:18:57] Speaker 04:
And I'm asking you what case says that that is not an element of a reentry case?

[00:19:03] Speaker 03:
Because 1326, unless it's attempted, you don't have to have a mens rea in the indictment.

[00:19:09] Speaker 03:
You do not have to prove, you do not have to have that be part of the notice of the charge.

[00:19:14] Speaker 03:
And I respectfully submit that when this defendant pleads guilty to being voluntarily present in the United States,

[00:19:22] Speaker 03:
And he admits he returned to the United States, he did it not only once, but twice he admits it because he's using this underlying conduct to admit his violation of supervised release, that the mens rea, that there doesn't have to be any in this indictment in order for the defendant to have notice of the charge.

[00:19:41] Speaker 03:
This is different than Salazar Gonzalez.

[00:19:43] Speaker 03:
Salazar Gonzalez is a jury instruction case.

[00:19:45] Speaker 03:
The judge didn't give any mens rea before the court found

[00:19:48] Speaker 03:
before the jury convicted him.

[00:19:52] Speaker 03:
We don't read jury instructions to a defendant when he pleads guilty.

[00:19:55] Speaker 00:
We just have to know whether or not the indictment... But the jury instructions which list the elements provide the checklist that you have to use when you're determining in a plea colloquy whether there's a sufficient factual basis and everything has to be covered.

[00:20:10] Speaker 03:
But the voluntary and what he did here

[00:20:14] Speaker 03:
You were, he covered the mens rei, the magistrate judge, in the factual basis.

[00:20:19] Speaker 03:
So before this defendant was convicted, before this defendant was convicted, he had that.

[00:20:27] Speaker 03:
He admitted that.

[00:20:28] Speaker 03:
And that's what I was getting at.

[00:20:31] Speaker 03:
He had already said, you're voluntarily present and found here in the United States near Amado.

[00:20:38] Speaker 03:
and that you didn't have plain consent before returning.

[00:20:41] Speaker 03:
And then he admits again for purposes of the SR violation.

[00:20:47] Speaker 03:
He's saying he's voluntarily present in the United States, or he's saying admitting to being found in the United States.

[00:20:52] Speaker 03:
So he does it twice.

[00:20:53] Speaker 03:
And I see I'm getting in the red here, but I wanted to see if I could touch on substantial rights.

[00:20:58] Speaker 03:
No, counsel, thank you.

[00:20:59] Speaker 03:
OK, no problem.

[00:21:00] Speaker 03:
You've exceeded your time.

[00:21:01] Speaker 03:
We'd ask this court to affirm because there was no error, there was no plain error, and there certainly was no violation of substantial rights.

[00:21:07] Speaker 03:
All right, thank you.

[00:21:12] Speaker 02:
Thank you, Your Honor.

[00:21:14] Speaker 02:
Exactly right, Judge Rawlinson, and I just want to point the Court to the discussion in Salazar-Gonzalez at page 857, which goes through the case law, including case law referenced by counsel for the government, and explains why that's not relevant in the context, including in this context.

[00:21:35] Speaker 02:
And the Rivera CES case, which the government just mentioned, it's mentioned there.

[00:21:39] Speaker 02:
And also as your honor, judge Robinson pointed out that case was a, it was a motion.

[00:21:45] Speaker 02:
It was a appeal of a denial of emotion to dismiss the indictment.

[00:21:49] Speaker 02:
And it was a found in case here.

[00:21:52] Speaker 00:
Exactly.

[00:21:52] Speaker 00:
You conceded in your opening brief that this is a found in case.

[00:21:55] Speaker 00:
You say at the bottom of page 16, Juan Diego was pleading guilty to the charge of reentry of removed alien.

[00:22:03] Speaker 00:
1326A, under its found-in clause, this is a general intent crime.

[00:22:10] Speaker 00:
And then you went to Salazar Gonzalez to say that even in the context of a found-in, there still has to be this knowledge requirement.

[00:22:17] Speaker 00:
But you presented this as a found-in case, and so I don't know that you get your shift towards this now.

[00:22:25] Speaker 02:
Well, I apologize for that, Your Honor, because it is clear that the indictment, he was convicted under an indictment that was entered and was found in.

[00:22:34] Speaker 04:
And if he was, so is it in your view now, is it illegal re-entry or is it a found in?

[00:22:41] Speaker 02:
It was never drilled down.

[00:22:43] Speaker 02:
I went back and looked last night and all of the references were just to 1326A in general.

[00:22:50] Speaker 02:
And so I do, I think the answer is in Salazar Gonzales at 857.

[00:22:54] Speaker 02:
I'm somewhat surprised that the government is arguing no error here.

[00:22:59] Speaker 02:
And I would just finally like to ask the court to vacate

[00:23:03] Speaker 02:
And remember that to prevail, we don't need a showing that it was more likely than not, it would have changed his decision, just that it might have changed his decision had he been properly advised.

[00:23:14] Speaker 04:
That it, counsel.

[00:23:15] Speaker 04:
Thank you.

[00:23:15] Speaker 04:
Thank you, counsel.

[00:23:17] Speaker 04:
Case just argued is submitted for decision by the court.