                    UNITED STATES COURT OF APPEALS                       FILED
                           FOR THE NINTH CIRCUIT                          JUL 19 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                       No.   17-50414, 17-50415

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-02358-MMA-1
  v.                                            3:12-cr-03690-MMA-1
                                                Southern District of California,
EDUARDO DUFFY,                                  San Diego

                Defendant-Appellant.            ORDER AMENDING
                                                MEMORANDUM AND
                                                DENYING PETITION FOR
                                                REHEARING AND PETITION
                                                FOR REHEARING EN BANC

Before: D.W. NELSON and CALLAHAN, Circuit Judges, and KORMAN,*
District Judge.

       The unpublished memorandum disposition filed on February 14, 2019 and

available at United States v. Duffy, 752 F. App’x 532 (9th Cir. 2019) is amended.

The superseding amended memorandum disposition will be filed concurrently with

this order.

       With the memorandum disposition so amended, the panel has voted to deny

appellant’s petition for panel rehearing. Judge Callahan voted to deny the petition

for rehearing en banc and Judges Nelson and Korman so recommended.



       *
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      The full court has been advised of the petition for rehearing en banc and no

judge of the court has requested a vote on it. Fed. R. App. P. 35.

      The petition for rehearing and petition for rehearing en banc are DENIED.

No further petitions for rehearing by the panel or en banc will be entertained.




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                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50414

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-02358-MMA-1
 v.

EDUARDO DUFFY,                                  AMENDED MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    17-50415

                Plaintiff-Appellee,             D.C. No.
                                                3:12-cr-03690-MMA-1
 v.

EDUARDO DUFFY, AKA Eduardo Duffy-
Carrasco,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                   Michael M. Anello, District Judge, Presiding

                          Submitted February 12, 2019**

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                 Pasadena, California

Before: D.W. NELSON and CALLAHAN, Circuit Judges, and KORMAN,***
District Judge.

      Eduardo Duffy, a citizen of Mexico, appeals his conviction, following a jury

trial, for illegal reentry after deportation in violation of 8 U.S.C. § 1326 and the

revocation of his supervised release based on the illegal reentry conviction. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                           I

      Duffy argues that his underlying removal order based on his California Penal

Code (CPC) § 211 conviction was invalid because CPC § 211 is not an aggravated

felony under 8 U.S.C. § 1101(a)(43). This argument is foreclosed by our recent

decision in United States v. Martinez-Hernandez, 912 F.3d 1207 (9th Cir. 2019),

which held that CPC § 211 is an aggravated felony because it qualifies as a

categorical generic theft offense under 8 U.S.C. § 1101(a)(43)(G).

                                           II

      Duffy argues that his illegal reentry conviction was invalid because,

following Morales-Santana, he was “convicted under a law classifying on an

impermissible basis.” Sessions v. Morales-Santana, — U.S. — , 137 S. Ct. 1678,

1699 n.24 (2017). Duffy does not argue that the provisions declared


      ***
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.

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unconstitutional in Morales-Santana apply to him; rather, he sets forth a facial

equal protection challenge to 8 U.S.C. § 1326 under the Fifth Amendment’s Due

Process Clause.

      “We review questions regarding the constitutionality of a statute de novo.”

See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).

      In Morales-Santana, the Supreme Court held that “[t]he gender-based

distinction infecting §§ 1401(a)(7) and 1409(a) and (c) . . . violates the equal

protection principle” implicit in the Fifth Amendment’s Due Process Clause.

Morales-Santana, 137 S. Ct. at 1700–01. Rather than striking the entire statute,

the Supreme Court struck down only the one-year physical-presence exception for

unwed U.S.-citizen mothers and held that, going forward, 8 U.S.C. § 1401(a)(7)’s

five-year requirement for unwed U.S.-citizen fathers “should apply, prospectively,

to children born to unwed U.S.-citizen mothers.” Id. at 1701. Duffy’s facial equal

protection challenge rests upon the gender-based distinction in §§ 1401(a)(7) and

1409(a) and (c) held invalid by Morales-Santana.

      The severability clause in the Immigration and Nationality Act (“INA”)

dictates that the remainder of 8 U.S.C. §§ 1401 and 1409 was not affected by

Morales-Santana. See 8 U.S.C. § 1101 note (“If any provision of this title . . . is

held invalid, the remainder of the title . . . shall not be affected thereby.”); see also

I.N.S. v. Chadha, 462 U.S. 919, 931–32 (1993) (declaring the veto clause of 8


                                            3
U.S.C. § 1254(c)(2) unconstitutional, but holding that the severability clause in 8

U.S.C. § 1101 “plainly authorized the presumption” that the remainder of the INA

stands. Duffy was properly convicted under 8 U.S.C. § 1326, which incorporates

definitions of “alien” and “citizen” that were not affected by Morales-Santana.

Thus, Duffy was not “convicted under a law classifying on an impermissible

basis.” Cf. Morales-Santana, 137 S. Ct. at 1699 n.24.

                                         III

      Duffy, who was born out of wedlock, argues that § 1409(a)’s requirement

that he show a blood relationship with his father violates the equal protection

principle because the same requirement is not imposed upon children who were

born in wedlock. 8 U.S.C. § 1409(a) (1952); United States v. Marguet-Pillado, 560

F.3d 1078, 1082 (9th Cir. 2009).

      When evaluating the constitutionality of citizenship definitions that

discriminate on the basis of parents’ marital status, we apply intermediate scrutiny

to determine whether the distinctions are “substantially related” to “an important

governmental objective.” Morales-Santana, 137 S. Ct. at 1690, 1700 n.25. We are

bound by Tuan Ahn Ngyuen to reject Duffy’s challenge. Tuan Ahn Ngyuen v.

I.N.S., 533 U.S. 53 (2001). In Tuan Ahn Ngyuen, the Supreme Court held that the

requirements that the current version of § 1409 imposes on a child born out of

wedlock, which include the requirement to establish a blood relationship with her


                                          4
father, do not violate the equal protection principle because the requirements serve

two important governmental interests: 1) to ensure that a biological parent-child

relationship exists and 2) to ensure that the child and the citizen parent have an

opportunity to develop a relationship with each other and to the United States.

Tuan Anh Nguyen, 533 U.S. at 62–66; see also Miller v. Albright, 523 U.S. 420,

436–38 (1998); Fiallo v. Bell, 430 U.S. 787, 799 (1977). The Supreme Court then

concluded that the means employed by Congress were “substantially related to the

achievement of” the important governmental objectives. Tuan Anh Ngyuen, 533

U.S at 70.

      We affirm Duffy’s illegal reentry conviction and the subsequent revocation

of supervised release.

      AFFIRMED.




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