UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF No. 20-50172 AMERICA, Plaintiff-Appellee, D.C. Nos. 3:20-mj-20210-BMK-H-1 v. 3:20-mj-20210-BMK-H RICARDO RIZO-RIZO, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Argued and Submitted August 3, 2021 Pasadena, California

Filed October 29, 2021

Before: Richard A. Paez, Consuelo M. Callahan, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett 2 UNITED STATES V. RIZO-RIZO

SUMMARY *

Criminal

Affirming a conviction for attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1), the panel held that § 1325(a) is a regulatory offense such that the presumption in favor of scienter does not apply, and thus knowledge of alienage is not an element.

COUNSEL Doug Keller (argued) and Michael Marks, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. David Chu (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff- Appellee.

* 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. RIZO-RIZO 3

OPINION BENNETT, Circuit Judge:

Defendant Ricardo Rizo-Rizo claims knowledge of alienage is an element of the crime of attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1). The magistrate judge rejected Rizo-Rizo’s contention that knowledge of alienage was such an element and so did not recite it as an element during Rizo-Rizo’s plea colloquy. Rizo-Rizo nonetheless entered a guilty plea and then appealed to the district court, which also rejected his contention. We have jurisdiction pursuant to 28 U.S.C. § 1291 to consider Rizo-Rizo’s appeal of those decisions. We hold that 8 U.S.C. § 1325(a) is a regulatory offense, and thus knowledge of alienage is not an element.

I.

A border patrol agent found and stopped Rizo-Rizo near the United States/Mexico border. When questioned, Rizo- Rizo admitted that he was a citizen of Mexico without appropriate immigration documents to be legally present in the United States. As a result, the agent arrested him. Rizo- Rizo was then questioned again, waived his Miranda rights, and confirmed that he was a citizen of Mexico who had just “illegally entered the United States . . . .”

Rizo-Rizo was charged with the misdemeanor of attempted illegal entry, in violation of 8 U.S.C. § 1325(a)(1), and he chose to plead guilty without a plea agreement. During the plea colloquy, the magistrate judge listed these elements of attempted illegal entry:

First, the Defendant was at the time of Defendant’s attempted entry into the United 4 UNITED STATES V. RIZO-RIZO

States an alien, that is, a person who is not a natural born or naturalized citizen or a national of the United States.

Second, the Defendant had the specific intent to enter the United States at a time and place other than as designated by immigration officers.

Third, the Defendant also had the specific intent to enter the United States free from official restraint, meaning the Defendant intended to enter without being detected, apprehended, or taken into custody by government authorities so that he or she could roam freely in the United Sta