                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       November 9, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-3186
          v.                                             (D. Kansas)
 JESUS RIOS-ZAMORA,                            (D.C. No. 03-CR-20152-GTV)

               Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before HENRY, McKAY, and HARTZ, Circuit Judges.



                                 I. BACKGROUND

      On October 17, 2003, Jesus Rios-Zamora was charged with one count of

being found illegally in the United States after having been deported, in violation

of 8 U.S.C. § 1326(a) and (b)(2). Mr. Rios-Zamora moved to dismiss the

indictment, arguing that the creation of the Department of Homeland Security and

the attendant transfer of certain immigration-related responsibilities from the


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of T ENTH C IR . R. 36.3.
Attorney General to the Secretary of Homeland Security on March 1, 2003 created

an overbreadth or vagueness defect in the indictment. The district court denied

the motion.

      Mr. Rios-Zamora then entered a conditional guilty plea pursuant to a plea

agreement that preserved his right to appeal the denial of his motion to dismiss

the indictment, but waived any rights to appeal a sentence within the guideline

range determined by the court. The district court sentenced Mr. Rios-Zamora to

77 months of imprisonment, to be followed by a two-year term of supervised

release.

      Mr. Rios-Zamora (1) appeals the denial of his motion to dismiss the

indictment, and (2) contends that, in the wake of United States v. Booker, 125 S.

Ct. 738 (2005), the district court erred when it sentenced him under a mandatory

sentencing scheme. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

district court’s denial of the motion to dismiss the indictment. In addition, we

hold that Mr. Rios-Zamora cannot bring a Booker challenge because his plea

agreement knowingly and voluntarily waived his right to appeal his sentence.

                                  II. DISCUSSION

      A. Challenges to the Indictment

      Mr. Rios-Zamora contends that the indictment (1) charged him with an

additional element offense that is not in the statute (the failure to obtain the


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advance consent of the Secretary of Homeland Security for readmission to the

United States); (2) failed to satisfy the Notice Clause of the Sixth Amendment and

the Indictment Clause of the Fifth Amendment, and is therefore unconstitutionally

vague, and (3) charged him with conduct that he was incapable of committing.

      “Generally, we review the grant or denial of a motion to dismiss an

indictment for an abuse of discretion. However, when the dismissal involves

issues of statutory interpretation, or when the sufficiency of a charge is

challenged, we review the district court’s decision de novo.” United States v.

Giles, 213 F.3d 1247, 1248-49 (10th Cir.2000).

      The indictment read as follows:

      On or about September 16, 2003, in the District of Kansas, JESUS
      RIOS-ZAMORA, the defendant herein, an alien, that is, a person who
      is not a citizen or national of the United States, was knowingly and
      unlawfully found in the United States without obtaining advance
      consent from the Attorney General and the Secretary of Homeland
      Security for readmission to the United States after having been
      convicted of an aggravated felony and having been deported from the
      United States on or about August 5, 2002, in violation of Title 8 United
      States Code, Section 1326(a) and (b)(2), with reference to Title 6
      United States Code, Sections 202(3), 202(4), 557.

Rec. vol. I, doc. 13, at 1 (emphasis added).

      1. The indictment sufficiently charged the offense

       Section 1326(a) provides:

      [A]ny alien who–




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      (1) has been denied admission, excluded, deported, or removed or has
      departed the United States while an order of exclusion, deportation, or
      removal is outstanding, and thereafter

      (2) enters, attempts to enter, or is at any time found in, the United
      States, unless (A) prior to his reembarkation at a place outside the
      United States or his application for admission from foreign contiguous
      territory, the Attorney General has expressly consented to such alien's
      reapplying for admission; or (B) with respect to an alien previously
      denied admission and removed, unless such alien shall establish that he
      was not required to obtain such advance consent under this chapter or
      any prior Act,

      shall be fined under Title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. § 1326(a) (emphasis added).

      Mr. Rios-Zamora contends that the indictment is fatally flawed because it

charges an element not contained in § 1326, that is, Mr. Rios-Zamora must have

“obtain[ed] advance consent from the . . . Secretary of Homeland Security for

readmission to the United States.” Rec. vol. I, doc. 13, at 1.

      “On March 1, 2003, the Immigration and Naturalization Service ceased to

exist as an agency within the Department of Justice, and its enforcement functions

were transferred to the Department of Homeland Security.” United States v.

Sandoval, 390 F.3d 1294, 1296 n.2 (10th Cir. 2004). See Homeland Security Act

of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). 1 The government responds

      1
         At oral argument, the panel asked the government to trace the statutory
and regulatory provisions that preceded the creation of the Department of
Homeland Security. In its supplemental authority, the government explains that,
prior to the creation of the Department of Homeland Security, the Attorney
                                                                     (continued...)

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that the statutory reference to the Attorney General that currently remains in the

text of 8 U.S.C. § 1326 was addressed by a proviso in the Homeland Security Act

deeming such references to refer to the Secretary of Homeland Security:

             With respect to any function transferred by or under this chapter
      (including under a reorganization plan that becomes effective under
      section 542 of this title) and exercised on or after the effective date of
      this chapter, reference in any other Federal law to any department,
      commission, or agency or any officer or office the functions of which
      are so transferred shall be deemed to refer to the Secretary, other
      official, or component of the Department to which such function is so
      transferred.

6 U.S.C. § 557 (emphasis added).

      We agree with the government and the district court that the indictment

sufficiently charges an offense under § 1326. To the extent the indictment

includes an additional allegation, that is, the advance consent from both the

Attorney General and the Secretary of Homeland Security, such language might

      1
        (...continued)
General’s statutory authority to consent to a previously removed alien’s
reapplying for admission was found in 8 U.S.C. §§ 1182(a)(9)(A)(iii),
(a)(9)(C)(ii). The Attorney General’s more general authority in immigration
matters was addressed in 8 U.S.C. §1103(a)(1) (2000).
       Regulations governing the procedure for obtaining consent to reapply for
admission after removal are set out in 8 C.F.R. § 212.2. Regulations delegating
the authority of the Attorney General to enforce the Immigration and Nationality
Act and all other laws relating to the immigration and naturalization of
aliens to the INS Commissioner, and regulations further delegating authority to
INS regional and district directors, were set out in 8 C.F.R §§ 2.1, 100.2(a) & (d),
103.1(g) (2001). In addition, 6 U.S.C. § 271(b) transfers adjudications previously
made by the Commissioner of Immigration and Naturalization to the Director of
the Bureau of Citizenship and Immigration.


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be mere surplusage that need not be proven. See United States v. Smith, 838 F.2d

436, 439 (10th Cir. 1988) (“When the language of the indictment goes beyond

alleging the elements of the offense, it is mere surplusage and such surplusage

need not be proved.”). With the transfer of authority under § 557, as of March 1,

2003, the title “Attorney General” is synonymous with the Secretary of Homeland

Security. Under the Homeland Security Act, only advance consent from the

Secretary of Homeland Security is required, and the government concedes as

much. Finally, the record establishes that Mr. Rios-Zamora did not seek

permission (1) either from the Attorney General from the date of his deportation

until March 1, 2003, or (2) from the Secretary of Homeland Security after March

1, 2003. Mr. Rios-Zamora’s challenge thus fails.

      2. Section 1325 is not unconstitutionally vague as applied to Mr. Rios-

Zamora

      In a similar vein, Mr. Rios-Zamora contends that § 1326 is

unconstitutionally vague because of the absence of a reference to the Secretary of

Homeland Security, therefore not providing fair notice of the need for such

advance consent.

      [T]he fair warning requirement embodied in the Due Process clause of
      the Fourteenth Amendment prohibits the [government] from holding an
      individual “criminally responsible for conduct which he could not
      reasonably understand to be proscribed.” United States v. Harriss, 347
      U.S. 612, [617] (1954). This prohibition against excessive vagueness
      does not, however, invalidate every statute which a reviewing court

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      believes could have been drafted with greater precision. Many statutes
      will have some inherent vagueness, for “in most English words and
      phrases there lurk uncertainties.” Robinson v. United States, 324 U.S.
      282, [286] (1945).

United States v. Herrera, 584 F.3d 1137, 1149 (2d Cir. 1978) (some citations

omitted).

      Although we agree with Mr. Rios-Zamora that § 1326 and § 557 fail to

cross-reference each other, it is of no consequence here. Had Mr. Rios-Zamora

sought advance consent from the Attorney General pursuant to §1326 to the

Attorney General, and the Attorney General neglected to refer the application to

the Secretary of Homeland Security, he might present a persuasive argument.

However, as we have noted, Mr. Rios-Zamora failed to seek advance consent

from either the Attorney General or the Secretary of Homeland Security. Thus,

we conclude that the statute made it sufficiently clear that he was barred from

returning to the United States without permission. See e.g., United States. v.

Vanness, 342 F.3d 1093, 1098 (10th Cir. 2003) (declining to reach determination

of whether unreasonable noise ordinance was unconstitutional). Section 1326 is

not unconstitutionally vague as applied to Mr. Rios-Zamora.

      3. Mr. Rios-Zamora was legally capable of performing the act with which

he was charged

      In his final challenge to the indictment, Mr. Rios-Zamora contends that he

is alleged to have illegally re-entered the United States in June 2003. At that

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time, the Attorney General was no longer responsible for consenting to

applications for permission to enter the United States. See 6 U.S.C. § 202(3), (4).

Thus, he argues that an application to the Attorney General during June 2003

would have been futile and of no legal effect. According to Mr. Rios-Zamora,

because he cannot violate the law if he fails to perform an act that he is legally

incapable of performing, the indictment cannot be upheld.

      Mr. Rios-Zamora’s argument is flawed for several reasons. First, the

indictment did not charge him with illegal reentry in June 2003. Rather, the

indictment alleged that Mr. Rios-Zamora was found unlawfully in the United

States on September 16, 2003, after having been deported on August 5, 2002.

Second, as the government points out, Mr. Rios-Zamora could have obtained

permission to reenter (1) from the Attorney General from the date of his

deportation until the transfer of authority on March 1, 2003, or (2) from the

Secretary of Homeland Security beginning on March 1, 2003. See Aple’s Br. at

17. Mr. Rios-Zamora was not charged with an act that he was incapable of

performing.

      B. Mr. Rios-Zamora’s Plea Agreement Waived His Right to Maintain a

Challenge to his Sentence

      Mr. Rios-Zamora also contends that we should remand his case for

resentencing in light of Booker because the district court erred in applying the



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guidelines in a mandatory fashion. However, in his plea agreement, Mr. Rios-

Zamora “knowingly and voluntarily waive[d] any right to appeal or collaterally

attach any matter in connection with this prosecution, conviction and sentence,

with the exception that he [could] appeal the denial of his motion to dismiss the

indictment.” Rec. vol. I, doc. 30, at 5 (emphasis omitted). Mr. Rios-Zamora also

“knowingly waive[d] any right to appeal a sentence imposed which is within the

guideline range determined appropriate by the court,” unless the United States

exercises its right to appeal the sentence. Id.

      In his reply brief, Mr. Rios-Zamora acknowledges that our holding in

United States v. Green, 405 F.3d 1180 (10th Cir. 2005), “appears to dispose of

[his] claim regarding Booker.” Reply Br. at 5-6. In Green, we noted that “a

defendant’s waiver of his appellate rights is not otherwise unlawful based on the

subsequent issuance of Booker.” 405 F.3d at 1191. Mr. Rios-Zamora nonetheless

raises this claim in the event that the en banc court reconsider its holding in

Green.

      We appreciate Mr. Rios-Zamora’s candor, and agree that his pre-Booker

plea agreement was knowing and intelligent. Further, our enforcement of Mr.

Rios-Zamora’s waiver will not result in a miscarriage of justice because the (1)

sentence was within the recommended guideline range, (2) the district court did

not rely on an impermissible factor at sentencing, and (3) the sentence was not



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otherwise unlawful. Thus he is unable to raise this Booker challenge because our

holding in Green precludes his claim.


                                 III. CONCLUSION

      Accordingly, we AFFIRM the district court’s denial of the motion to

dismiss the indictment, and we ENFORCE Mr. Rios-Zamora’s waiver of his right

to appeal his sentence, thus dismissing that part of the appeal.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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