                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               JUN 18 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50195

              Plaintiff-Appellee,                D.C. No. 2:15-cr-00245-GW-1

 v.
                                                 MEMORANDUM*
CESAR RAUL ACEVES,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                       Argued and Submitted March 2, 2020
                              Pasadena, California

Before: KLEINFELD and CALLAHAN, Circuit Judges, and CHRISTENSEN,**
District Judge.

      Cesar Raul Aceves’s collateral attack on his deportation order must fail,

according to the text of 8 U.S.C. § 1326(d). Subsections (1) and (2) are not

satisfied, because he did not exhaust available proceedings to seek relief, nor was

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
he deprived of judicial review. Nor was there any fundamental unfairness

regarding the entry of the order, as subsection (3) requires. Aceves was deportable,

was represented by counsel, had conceded removability, had no plausible avenue

for relief, and has shown no prejudice. Although he argues that the record does not

sufficiently establish that he understood the proceedings, he has come forward with

no cognizable evidence that would cast doubt on his understanding.



      Aceves argues that the jury instructions omitted an element of the crime,

because they did not require the government to prove that he knew he had been

deported. He concedes, as he must, that under established Ninth Circuit law, there

was no such element, and it sufficed for the government to prove that he

voluntarily entered the United States having been deported and without permission,

and knowingly remained. United States v. Flores-Villar, 536 F.3d 990, 999 (9th

Cir. 2008), aff'd, 564 U.S. 210 (2011), and abrogated on other grounds by

Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017); United States v. Rivera-

Sillas, 417 F.3d 1014, 1020 (9th Cir. 2005); United States v. Leon-Leon, 35 F.3d

1428, 1432–33 (9th Cir. 1994). Aceves presents a substantial argument that these

cases are inconsistent with recent subsequent Supreme Court authority, and are




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therefore no longer good law, citing Elonis v. United States, 575 U.S. ____, 135 S.

Ct. 2001 (2015) and Rehaif v. United States, 139 S. Ct. 2191 (2019).



      We remain bound, however, by controlling Ninth Circuit precedent, under

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), because Elonis and

Rehaif addressed different statutes from the one charged in this case, and

knowledge that he had been deported was not the only factor that would make

Aceves’s conduct criminal. Entering the United States without complying with

immigration procedures was not “otherwise innocent conduct,” Elonis, 135 S. Ct.

at 2010 (quoting Carter v. United States, 530 U.S. 255, 269 (2000)), whether or

not Aceves understood that he had been deported.



      And even if the district court were deemed to have erred by omitting the

instruction Aceves sought, the error would be harmless on the record in this case.

It appears beyond a reasonable doubt that the claimed error did not contribute to

the verdict. United States v. Conti, 804 F.3d 977, 980 (9th Cir. 2015). Though his

attorney argued that Aceves might not have understood that he was being deported,

no declaration or other cognizable evidence was submitted to establish that Aceves

lacked the requisite knowledge. The events upon his release from prison provide


                                          3
overwhelming evidence that he knew he was being deported. He was ordered

deported in a judicial proceeding, given papers saying that he was being deported,

and sent to Mexico on a bus with other deportees. There is no evidence in the

record to support Aceves’s argument that he may not have understood, or that his

attorney did not explain, what was occurring, or that he might have thought that the

presence of some aliens on the bus who had been granted voluntary departure

would have left him ignorant of whether he was being deported.



      Aceves also argues that we must remand for correction of three conditions of

supervised release violative of United States v. Evans, 883 F.3d 1154, 1162–64

(9th Cir. 2018). He is correct, as the government necessarily concedes. What used

to be standard conditions five, six, and fourteen were in Evans held to be

unconstitutional, so we remand for the district court to modify or delete them as it

deems appropriate.



      AFFIRMED in part, VACATED and REMANDED in part.




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