United States v. Clemente Hernandez-Garcia

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-50228 Plaintiff-Appellee, D.C. No. v. 3:19-cr-04373-GPC-1 CLEMENTE HERNANDEZ- GARCIA, ORDER AND Defendant-Appellant. AMENDED OPINION Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding Argued and Submitted February 10, 2022 Pasadena, California Filed May 4, 2022 Amended August 17, 2022 Before: Mary M. Schroeder, Kermit V. Lipez, * and Kenneth K. Lee, Circuit Judges. Order; Opinion by Judge Lee * The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. 2 UNITED STATES V. HERNANDEZ-GARCIA SUMMARY ** Criminal Law The panel filed (1) an order denying a petition for panel rehearing and denying on behalf of the court a petition for rehearing en banc, and (2) an opinion that amends a May 4, 2022, opinion affirming a conviction for illegal reentry after removal, in a case in which a Marine Corps surveillance unit spotted the defendant immediately after he unlawfully entered the United States, and notified Customs and Border Patrol agents who soon detained him. The defendant argued that the Marine Corps surveillance violated the Posse Comitatus Act, which codified the longstanding prohibition against military enforcement of civilian law. Rejecting that argument, the panel explained that the military may still assist civilian law enforcement agencies if Congress expressly authorized it, and here, the 2016 National Defense Authorization Act directed the U.S. Secretary of Defense to offer military assistance to Border Patrol in hopes of securing the southern land border. The panel concluded that the district court therefore properly denied the defendant’s suppression motion based on the alleged violation of the Posse Comitatus Act. The panel also denied the defendant’s Batson challenge to the prosecution’s striking two Asian jurors from the venire, concluding that the defendant failed to rebut the prosecution’s race-neutral reasons for doing so. ** 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. HERNANDEZ-GARCIA 3 COUNSEL Kara Hartzler (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. Daniel E. Zipp (argued), Assistant United States Attorney; Randy S. Grossman, Acting United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee. ORDER The panel voted to deny the petition for panel rehearing. Judges Lee and Schroeder voted to deny the petition for rehearing en banc, and Judge Lipez recommended denying the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc (Dkt. No. 47) is DENIED. No future petitions for rehearing or rehearing en banc will be entertained. The Clerk shall file the opinion submitted with this order that amends the opinion submitted on May 4, 2022 (Dkt. No. …

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