                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 09 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50579

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00402-GAF-1

  v.
                                                 MEMORANDUM*
ABEL PENA-SILVA, AKA Fernando
Pena-Silva, AKA Fernando Zaragoza-
Torres,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50581

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00403-GAF-1

  v.

RICARDO RODRIGUEZ-MANZO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                           Page 2 of 3
                            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).
                                                                        Page 3 of 3
      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.
