Opinion
21-cr-00306-EMC-1
05-09-2024
UNITED STATES OF AMERICA, Plaintiff, v. LUIS ANTONIO TZUN-MAGANA, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
DOCKET NO. 32
EDWARD M. CHEN UNITED STATES DISTRICT JUDGE
Defendant Luis Antonio Tzun-Magana is a citizen of Mexico who has been twice removed from the United States in 2015 and 2017. Compl. ¶¶ 8, 16. Following his most recent removal, Mr. Tzun-Magana again entered the United States, was arrested for a domestic violence incident, and came to the attention of immigration authorities. Compl. ¶ 18. A grand jury indicted him for illegal reentry following a prior removal, in violation of 8 U.S.C. § 1326(a) & (b)(2). Compl. at 1. On January 26, 2022, Mr. Tzun-Magana moved to dismiss the indictment on the grounds that § 1326 violates the Equal Protection Clause of the Fifth Amendment. Docket No. 32.
The Ninth Circuit considered and rejected the same arguments raised by Mr. Tzun-Magana regarding the unconstitutionality of 8 U.S.C. § 1326 in Carrillo-Lopez v. United States, 68 F.4th 1133 (9th Cir. 2023). On January 22, 2024, the Supreme Court denied Mr. Carillo-Lopez's petition for writ of certiorari. Carrillo-Lopez v. United States, 144 S.Ct. 703 (2024).
Indeed, the parties in this action stipulated that Carrillo-Lopez concerned “the same issue” as the present motion. Dkt. No. 56.
Accordingly, the Court DENIES Mr. Tzun-Magana's Motion to Dismiss.
This order disposes of Docket No. 32.
The parties are further ordered to appear for a status conference on May 29, 2024, at 1:30 p.m., in Courtroom 5, 17th Floor, 450 Golden Gate Avenue, San Francisco. A joint status report is to be filed one week prior to the status conference.
IT IS SO ORDERED.