                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 16 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-50268

              Plaintiff - Appellee,               D.C. No. 3:11-cr-00134-BEN-1

  v.
                                                  MEMORANDUM*
JOSE FERMIN DAVALOS-MARTINEZ,

              Defendant - Appellant.


                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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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