                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                 No. 12-30046
              Plaintiff-Appellee,
                                              D.C. No.
                v.                         2:11-cr-02074-
                                              RHW-1
ALVARO SANCHEZ-AGUILAR,
          Defendant-Appellant.



UNITED STATES OF AMERICA ,                  No. 12-30049
              Plaintiff-Appellee,
                                              D.C. No.
                v.                         2:09-cr-02057-
                                              RHW-1
ALVARO SANCHEZ-AGUILAR,
          Defendant-Appellant.                OPINION


     Appeal from the United States District Court
         for the Eastern District of Washington
   Robert H. Whaley, Senior District Judge, Presiding

               Argued and Submitted
        December 7, 2012—Seattle, Washington

                     Filed June 19, 2013
2            UNITED STATES V . SANCHEZ-AGUILAR

     Before: Richard C. Tallman and Paul J. Watford, Circuit
       Judges, and Michael W. Fitzgerald, District Judge.*

                   Opinion by Judge Watford;
                   Dissent by Judge Fitzgerald


                           SUMMARY**


                           Criminal Law

   The panel affirmed an illegal reentry conviction under
8 U.S.C. § 1326 in the case of a defendant who had already
been convicted, in 2009, of violating § 1326 based on the
same 2006 removal order that formed the predicate for the
conviction in this case.

    The panel held that proof of the defendant’s post-2009
departure from the United States, although necessary to avoid
double jeopardy concerns, was not an element of the § 1326
offense submitted to the jury. The panel therefore rejected
the defendant’s contention that the government’s failure to
prove at trial that the defendant left the United States after his
2009 conviction means there was insufficient evidence to
support the conviction. Because it was undisputed in the
district court or on appeal that the defendant left the United
States after his 2009 conviction, the panel held that there was


 *
   The Honorable Michael W . Fitzgerald, United States District Judge for
the Central District of California, sitting by designation.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V . SANCHEZ-AGUILAR                  3

no error, much less plain error, in the district court’s refusal
to vacate the defendant’s conviction based on a double
jeopardy defense. The panel rejected the defendant’s
contention that, in analyzing his double jeopardy defense, this
court is limited to reviewing the evidence presented to the
jury.

    Rejecting the defendant’s collateral attack on the validity
of the 2006 removal order, the panel held that the failure of
the immigration officer who interviewed the defendant at the
border to inform him of his ability to request withdrawal of
his application of admission did not violate his due process
rights. The panel explained that non-admitted aliens like the
defendant who seek entry at the border are entitled only to
whatever process Congress provides, and the right to be
informed of potentially available avenues of relief from
removal is not among the procedural rights to which such
aliens are entitled under the statute and regulation governing
expedited removal proceedings.

    Dissenting, District Judge Fitzgerald would reverse and
remand with instructions for entry of judgment of acquittal
based on insufficiency of the evidence because he reads
United States v. Meza-Villarello, 602 F.2d 209 (9th Cir.
1979) (per curiam), as requiring the government to prove to
the jury beyond a reasonable doubt that the defendant has
been outside the United States since the prior § 1326
conviction.
4          UNITED STATES V . SANCHEZ-AGUILAR

                         COUNSEL

Rebecca L. Pennell (argued), Federal Defenders of Eastern
Washington & Idaho, Yakima, Washington, for Defendant-
Appellant.

Alison L. Gregoire (argued), Assistant United States
Attorney; Michael C. Ormsby, United States Attorney,
Yakima, Washington, for Plaintiff-Appellee.


                         OPINION

WATFORD, Circuit Judge:

     Alvaro Sanchez-Aguilar is a citizen of Mexico who
initially came to the United States as a child with his mother.
Although many of his immediate family members lawfully
reside in the United States, he does not, and the federal
government has formally removed him to Mexico on five
occasions. Following his last removal, in 2010, he returned
to the United States without first obtaining permission to do
so, as required by law.

     In May 2011, the government charged him with being an
alien who, after having been removed in 1998, 2005, 2006,
2007, and 2010, was “found in” the United States in violation
of 8 U.S.C. § 1326. A jury convicted Sanchez-Aguilar of that
offense, and the district court sentenced him to the applicable
statutory maximum of two years in prison.

   Sanchez-Aguilar raises two challenges to his conviction.
The first, which he incorrectly frames as a challenge to the
           UNITED STATES V . SANCHEZ-AGUILAR                 5

sufficiency of the evidence, requires a brief summary of the
procedural history of the case.

    Before trial, Sanchez-Aguilar moved to dismiss the
indictment on the ground that each of his prior removal orders
had been issued in violation of his due process rights. A
removal order may not be used as the predicate for a § 1326
prosecution if the proceeding that produced the order
“violated the alien’s due process rights and the alien suffered
prejudice as a result.” United States v. Barajas-Alvarado,
655 F.3d 1077, 1085 (9th Cir. 2011) (internal quotation marks
and citation omitted). The government conceded that four of
Sanchez-Aguilar’s removal orders were invalid under this
standard. But the government argued that Sanchez-Aguilar’s
due process rights had not been violated in connection with
the 2006 removal order, and the district court ultimately
agreed. The court accordingly denied Sanchez-Aguilar’s
motion to dismiss the indictment, although it rejected the
government’s request to introduce evidence relating to the
1998, 2005, 2007, and 2010 removal orders under Federal
Rule of Evidence 404(b). At trial, the jury heard evidence
that Sanchez-Aguilar had been removed from the United
States only in 2006.

    The source of controversy on appeal is this: Sanchez-
Aguilar had already been convicted, in 2009, of violating
§ 1326 based on the same 2006 removal order that forms the
predicate for the conviction in this case. There is nothing
inherently wrong with that; under the “found in” prong of
§ 1326, the same removal order can serve as the basis for
more than one conviction, so long as the government
“prove[s] that the defendant ha[s] been outside the United
States after each conviction” before he is again prosecuted for
violating § 1326. United States v. Meza-Villarello, 602 F.2d
6          UNITED STATES V . SANCHEZ-AGUILAR

209, 211 (9th Cir. 1979) (per curiam). We adopted that rule,
grounded in double jeopardy concerns, to avoid the specter of
the government obtaining one § 1326 conviction and then,
after releasing the defendant from prison, arresting him at the
prison gates for again being “found in” the United States. Id.

    In this case, the government did not prove at trial that
Sanchez-Aguilar had been outside the United States between
his 2009 conviction and his arrest for the offense at issue
here. But in fact he had been. It is undisputed that, upon
completing his sentence for the 2009 conviction, Sanchez-
Aguilar was immediately removed to Mexico on September
3, 2010. The jury never learned of that fact because the
district court excluded any evidence relating to the 2010
removal order.

    The question we must resolve is whether the
government’s failure to prove at trial that Sanchez-Aguilar
left the United States after his 2009 conviction is of any
significance. Sanchez-Aguilar contends the government’s
failure to prove that fact means there was insufficient
evidence to support his conviction in this case. We view the
matter differently. Proof of Sanchez-Aguilar’s post-2009
departure from the United States, although necessary to avoid
double jeopardy concerns, was not an element of the § 1326
offense submitted to the jury. See United States v. Florez,
447 F.3d 145, 150 (2d Cir. 2006) (proof of flight from justice
necessary to avoid statute-of-limitations dismissal “did not
thereby become an element of the charged narcotics
offenses”). To obtain a conviction, the government needed
to prove only that Sanchez-Aguilar had been removed from
the United States in 2006, and that at some point thereafter he
knowingly and voluntarily returned to the United States
without first obtaining the requisite permission to do so. See
           UNITED STATES V . SANCHEZ-AGUILAR                  7

United States v. Romo-Romo, 246 F.3d 1272, 1276 (9th Cir.
2001). The government introduced ample proof of those
statutory elements at trial, and Sanchez-Aguilar does not
contend otherwise. Thus, the government introduced
sufficient evidence to sustain his conviction.

    That leaves the question whether Sanchez-Aguilar’s
conviction violates his right not to “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V. Since Sanchez-Aguilar never raised a
double jeopardy defense in the district court, we review the
record only for plain error. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732 (1993). We find
none. Under Meza-Villarello, in order to ensure that his
conviction in this case is for a different § 1326 “offence,” the
government had to show that Sanchez-Aguilar left the United
States after his 2009 conviction. 602 F.2d at 211. But that
fact was undisputed below and is not disputed on appeal.
Indeed, in a pre-trial brief, Sanchez-Aguilar conceded that he
had been removed from the United States in September 2010.
So there was no error, much less plain error, in the district
court’s refusal to vacate Sanchez-Aguilar’s conviction based
on a double jeopardy defense he never raised.

     We reject Sanchez-Aguilar’s contention that, in analyzing
his double jeopardy defense, we are limited to reviewing the
evidence presented to the jury. That contention cannot be
squared with precedent holding that double jeopardy is a
question of law that must be resolved by the court, not the
jury, even when the defense turns on disputed factual issues.
See United States v. Persico, 832 F.2d 705, 712 (2d Cir.
1987); United States v. MacDougall, 790 F.2d 1135, 1142–43
(4th Cir. 1986). When the defense must be addressed after
trial and turns on disputed facts, district courts are
8            UNITED STATES V . SANCHEZ-AGUILAR

empowered to hold post-trial evidentiary hearings to make the
necessary factual determinations. See Persico, 832 F.2d at
712; United States v. Young, 503 F.2d 1072, 1076–77 & n.17
(3d Cir. 1974). If courts were limited to reviewing the
evidence introduced at trial, as Sanchez-Aguilar urges, post-
trial evidentiary hearings to address double jeopardy issues
would be neither needed nor authorized.1

    Sanchez-Aguilar’s second challenge to his conviction is
a collateral attack on the validity of the 2006 removal order.
That attack can succeed only if Sanchez-Aguilar shows that
“the entry of the order was fundamentally unfair.” 8 U.S.C.
§ 1326(d)(3). As alluded to earlier, this standard requires the
defendant to establish both a due process violation in the
underlying removal proceeding and resulting prejudice.
Barajas-Alvarado, 655 F.3d at 1085; United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). We
need not analyze prejudice because Sanchez-Aguilar has not
established a due process violation.




    1
    In M eza-Villarello, we noted that no double jeopardy concerns were
raised because “the government’s evidence was sufficient to permit the
jury to find” that the defendant had left the United States after his prior
§ 1326 conviction. 602 F.2d at 211. Contrary to the dissent’s suggestion,
we did not purport to hold that the jury was required to make that finding
to sustain a valid second conviction. Doing so would have upended
settled law holding that a fact needed to establish separate offenses for
double jeopardy purposes must be proved to the court. See United States
v. Bendis, 681 F.2d 561, 564 (9th Cir. 1981); see also United States v.
Ragins, 840 F.2d 1184, 1192 (4th Cir. 1988). Instead, we merely
observed that, given the record at trial (which included evidence of the
prior conviction and undisputed evidence of a post-conviction departure),
the jury actually convicted the defendant of a distinct second offense, and
thus there could be no conceivable double jeopardy violation.
          UNITED STATES V . SANCHEZ-AGUILAR                9

    Sanchez-Aguilar contends that his due process rights were
violated because the immigration officer who interviewed
him at the border did not tell him that he could request
withdrawal of his application for admission, a form of
discretionary relief which, if granted, would have allowed
Sanchez-Aguilar to leave the United States immediately
without a removal order being entered. See 8 U.S.C.
§ 1225(a)(4); 8 C.F.R. § 235.4. In the context of removal
proceedings for aliens who have already been admitted into
the United States, we have held that due process requires the
immigration judge to inform such aliens of potentially
available avenues of relief. See United States v. Arce-
Hernandez, 163 F.3d 559, 563 (9th Cir. 1998). But Sanchez-
Aguilar’s 2006 removal order was the product of an
expedited removal proceeding authorized under 8 U.S.C.
§ 1225(b)(1). Such proceedings are generally reserved for
“arriving aliens” who, like Sanchez-Aguilar at the time, are
seeking admission into the United States at the border. See
8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 235.3(b)(1)(i).

     Non-admitted aliens like Sanchez-Aguilar who seek entry
at the border “are entitled only to whatever process Congress
provides.” Barajas-Alvarado, 655 F.3d at 1088; see United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544
(1950). The statute and regulation governing expedited
removal proceedings, 8 U.S.C. § 1225(b)(1) and 8 C.F.R.
§ 235.3, set forth the procedural rights to which such aliens
are entitled, but the right to be informed of potentially
available avenues of relief from removal is not among them.
As a result, the immigration officer’s failure to inform
Sanchez-Aguilar of his ability to request withdrawal of his
10          UNITED STATES V . SANCHEZ-AGUILAR

application for admission did not violate his due process
rights. See United States v. Lopez-Vasquez, 227 F.3d 476,
479–80, 484–85 (5th Cir. 2000).

     AFFIRMED.



FITZGERALD, District Judge, dissenting:

     I respectfully dissent.

     I agree with virtually all of the majority’s opinion. I
agree that the immigration officer’s failure to inform Mr.
Sanchez-Aguilar of his ability to request withdrawal of his
application for admission did not violate Mr. Sanchez-
Aguilar’s due process rights. I agree that double jeopardy is
a question of law that must be resolved by the court, not the
jury, even when the defense turns on disputed factual issues.
And I agree that, in this case, the government did not prove
at trial that Mr. Sanchez-Aguilar had been outside the United
States between his 2009 conviction and his arrest for the
offense at issue here.

    Where I break with the majority is in its reading of United
States v. Meza-Villarello, 602 F.2d 209 (9th Cir. 1979) (per
curiam). In that case, the defendant had been deported in
1971 and convicted of violating Section 1326 in 1975 and
again in 1979; the 1979 conviction was the subject of the
appeal. Id. at 209–10. The defendant had argued for a jury
instruction “tendered upon a double-jeopardy theory,” which
the district court rejected. Id. at 210. At trial, the
government established that the defendant had been deported
in 1971, that he had been convicted of violating Section 1326
           UNITED STATES V . SANCHEZ-AGUILAR                 11

in 1975, and that he had been found (without permission) and
arrested in the United States in 1978. Id. There was no proof
that the defendant had been deported after the 1975
conviction. Id.

    “The requested instruction would have told the jury that
it could not return a verdict of guilty unless it found beyond
a reasonable doubt that the defendant had left the United
States under a ‘lawful order of deportation or of voluntary
departure’ subsequent to his 1975 sentencing.” Id. The
defendant argued that the government “must prove a separate
prior deportation for each new offense of being ‘at any time
found in’ the United States.” Id.

    This Circuit rejected this theory, but only in part.
According to the Meza-Villarello panel, “We do not believe
Congress intended to require a separate official or formal act
of deportation to precede each repeated violation of section
1326.” Id. at 211. Stated simply, a single predicate removal
can support multiple Section 1326 convictions – another point
on which I agree with the majority in this case.

    However, the Meza-Villarello panel continued, “[t]o
avoid an unfair prosecution following an arrest at the prison
gates, . . . the government should be required to prove that the
defendant had been outside the United States after each
conviction before again prosecuting him for being ‘found’
within the United States in violation of 8 U.S.C. § 1326.” Id.;
see also United States v. Barraza-Lopez, 659 F.3d 1216, 1217
n.1 (9th Cir. 2011) (“Under [Meza-Villarello], ‘the
government [is] required to prove that the defendant ha[s]
been outside the United States after each conviction before
again prosecuting him for being “found” within the United
States in violation of 8 U.S.C. § 1326.’” (second and third
12         UNITED STATES V . SANCHEZ-AGUILAR

alterations in the original) (citing Meza-Villarello, 602 F.2d
at 211)). Again, this language does not necessarily conflict
with the majority’s opinion here.

    The Meza-Villarello decision then concluded that the
“government’s evidence was sufficient to permit the jury to
find that after his 1978 arrest [the defendant] gave an address
in Mexico as his ‘home’ and that he had admitted to officers
that he had ‘crossed’ earlier the day he was arrested. On this
record there was no error in refusing the tendered
instruction.” Id. at 211 (emphasis added).

    Technically, the Meza-Villarello panel did not reach the
double jeopardy issue: “We need not reach the double-
jeopardy questions that might lurk in this case had there been
no evidence of a return to Mexico followed by a renewed
presence in the United States after [the defendant]’s next
most recent conviction.” Id.

    In sum, I read Meza-Villarello as setting forth a two-part
holding: In any Section 1326 prosecution that follows a prior
Section 1326 conviction, (1) there need not have been a
separate official or formal act of deportation following the
prior Section 1326 conviction; but, (2) the government is
required to prove – to the jury beyond a reasonable doubt –
that the defendant has been outside the United States since the
prior Section 1326 conviction.

    That the requested jury instruction in Meza-Villarello was
“tendered upon” (i.e., informed by) a double jeopardy theory
does not make the second prong of this rule a question of law
for the court. As noted above, the panel in Meza-Villarello
explicitly did not reach the double-jeopardy question. If it
had reached that question and viewed the resolution as a
           UNITED STATES V . SANCHEZ-AGUILAR                 13

matter of law, the panel would have written that the
“government’s evidence was sufficient to permit” the district
court to find that the defendant had been outside the United
States after the 1975 conviction. The decision reads
otherwise.

    Instead, Meza-Villarello is best understood as follows: In
any Section 1326 prosecution that follows a prior Section
1326 conviction, the government must prove to the jury
beyond a reasonable doubt that the defendant had left the
United States subsequent to the prior conviction. While the
government need not necessarily prove a subsequent
deportation or removal, there must be evidence sufficient to
permit the jury to find beyond a reasonable doubt that the
defendant left the United States in the time period following
the prior Section 1326 conviction.

    My colleagues on the district court seem to agree with this
interpretation of Meza-Villarello. See, e.g., United States v.
Perales-Flores, No. CR-05-6049-EFS, 2006 WL 219543, at
*1–2 (E.D. Wash. Jan. 27, 2006) (granting Rule 29 motion
for judgment of acquittal) (“[I]n view of the absence of any
evidence that Defendant . . . had been outside of the United
States following his 2000 § 1326 conviction, the Court finds
the Government failed to prove an essential element of the
crime charged: that Defendant had left the United States after
being convicted under § 1326 in 2000. Absent proof of
Defendant’s departure from the United States, there can be no
new conviction for illegal reentry under § 1326.”) (discussing
Meza-Villarello, 602 F.2d at 210).

    Contrary to the majority’s suggestion, this reading of our
prior decision is not in conflict with the precedent that double
jeopardy is a question of law for the court. Nor does it create
14         UNITED STATES V . SANCHEZ-AGUILAR

an additional element of the Section 1326 offense. Rather,
the panel in Meza-Villarello simply interpreted the statutory
element of Section 1326(a)(2) – specifically, that the
defendant “enters, attempts to enter, or is at any time found
in, the United States” – in light of the double jeopardy
concerns implicated by a subsequent Section 1326
prosecution following a prior Section 1326 conviction. This
is not a double jeopardy “question.” It is a question of the
government’s burden at trial to present sufficient evidence of
an element of the crime, as interpreted by this Circuit in order
to avoid the double jeopardy question. See, e.g., United
States v. Jinian, 712 F.3d 1255, 1259 (9th Cir. 2013) (“We
review de novo a district court’s interpretation of a criminal
statute and denial of a motion for judgment of acquittal.”
(citations omitted)); I.N.S. v. St. Cyr, 533 U.S. 289, 299–300,
121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) (“[I]f an otherwise
acceptable construction of a statute would raise serious
constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible,’ we are
obligated to construe the statute to avoid such problems.”
(citations omitted)).

    According to the majority, the panel in Meza-Villarello
was only making reference to the fact below that the jury did
hear certain evidence, without meaning to imply that the
matter was necessarily for the jury. In light of the actual
issue raised and decided – the propriety of a tendered jury
instruction explicitly reviewed on the record of that case – the
majority’s reading stretches the text of Meza-Villarello too
far. I fail to see why the prior panel would have chosen the
language it did unless the issue was understood to be for the
jury. Indeed, if the majority’s reading were correct, then the
text of Meza-Villarello should have been virtually
           UNITED STATES V . SANCHEZ-AGUILAR                  15

indistinguishable from the text of the majority’s current
opinion.

    As this Circuit has recognized,

             In determining whether it is bound by an
        earlier decision, a court considers not merely
        the “reason and spirit of cases” but also “the
        letter of particular precedents.” This includes
        not only the rule announced, but also the facts
        giving rise to the dispute, other rules
        considered and rejected and the views
        expressed in response to any dissent or
        concurrence. Thus, when crafting binding
        authority, the precise language employed is
        often crucial to the contours and scope of the
        rule announced.

Hart v. Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001)
(citations omitted).

    Mr. Sanchez-Aguilar’s projected release date is July 14,
2013. (See Appellant’s Opening Br. at 3). Practically, the
significance of this decision is its explication of a clear rule
to guide the government, defendants, and the district courts
in future cases. It is now clear that a jury has no role in
considering whether, in a subsequent Section 1326
prosecution, a defendant has left and returned to the United
States after his prior conviction. Defense counsel must raise
the issue before trial and there is no obligation to instruct the
jury. The majority’s rule would have avoided the precise
problem that arose below: Neither party raised this issue with
the district court, but the defendant can still take advantage of
review for clear error. With this case as just one example, the
16         UNITED STATES V . SANCHEZ-AGUILAR

majority’s rule might be a preferable way of dealing with the
articulated concerns of fairness and double jeopardy – were
we writing on the proverbial clean slate (or empty computer
monitor).

    Less practical but equally important are the concerns of
stare decisis. A prior Ninth Circuit opinion is equally
binding on subsequent panels and the district courts. Hart,
266 F.3d at 1171. As a district judge, I would never have
refused a properly worded jury instruction in a subsequent
Section 1326 trial that followed a prior Section 1326
conviction. In other words, I would have felt bound by the
(to me) clear ruling in Meza-Villarello; sitting by designation
now, I cannot disregard that ruling.

    Accordingly, I would reverse and remand the case with
instructions for entry of a judgment of acquittal, based on
insufficiency of the evidence.
