                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 18 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-50266

              Plaintiff-Appellee,                D.C. No.
                                                 3:18-mj-02495-RNB-BAS-1
 v.

FRANCISCO JAVIER PEREZ-                          MEMORANDUM*
MARTINEZ,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Cynthia A. Bashant, District Judge, Presiding

                             Submitted June 12, 2019**
                               Pasadena, California

Before: FERNANDEZ, WARDLAW, and BYBEE, Circuit Judges.

      Francisco Javier Perez-Martinez was apprehended by a border patrol agent

about 23.5 miles east of the Tecate, California, Port of Entry and about 0.25 miles

north of the United States-Mexico border. Perez admitted that he was a Mexican

      *
             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).
citizen not legally authorized to enter the United States and was arrested. Perez

appeared before a magistrate judge and pleaded guilty to violating 8 U.S.C. §

1325(a)(2). Perez appealed his conviction to the district court, arguing that it

should be vacated because there was not an adequate factual basis for his plea. The

district court affirmed and Perez appealed to this court.

      Where, as here, a defendant challenges his conviction on grounds that he did

not raise before the court that imposed judgment, we review for plain error. United

States v. Escamilla-Rojas, 640 F.3d 1055, 1061 (9th Cir. 2011). An error is plain if

it is clearly inconsistent with established law “at the time of appellate

consideration.” Henderson v. United States, 568 U.S. 266, 274 (2013) (citing

Johnson v. United States, 520 U.S. 461, 468 (1997)). The magistrate judge here

erred in determining there was an adequate factual basis for Perez’s guilty plea. To

be convicted of “elud[ing] examination or inspection by immigration officers”

under § 1325(a)(2), “the alien’s conduct must occur at a designated port of entry

that is open for inspection and examination.” United States v. Corrales-Vazquez,

931 F.3d 944, 954 (9th Cir. 2019). Because Perez was apprehended 23.5 miles

east of the nearest port of entry, there was an inadequate factual basis for his

conviction. See id.

      Perez’s conviction is therefore VACATED.


                                           2
                                                                            FILED
United States v. Perez-Martinez, No. 18-50266
                                                                            SEP 18 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
FERNANDEZ, Circuit Judge, dissenting:

      I respectfully dissent for the reasons set forth in my dissenting opinion in

United States v. Corales-Vazquez, 931 F.3d 944, 956–59 (9th Cir. 2019).
