First, the ground for defendant's deportation was that defendant had unlawfully entered the United States after having been previously deported for unlawfully enteting the United States. In a Notice of Intent/ Decision to Reinstate a Prior Order to Appear, I.C.E. charged that, pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (8 U.S.C. § 1326[a][1] and [2]) , defendant, who was a citizen of Honduras and not a citizen of the United States, was subject to removal on the ground that he had illegally entered the United States at an unknown place and at an unknown date after having already been "removed on June 22, 2005, pursuant to an order of deportation/ exclusion/ removal" (AA.26). Thus, it is clear that defendant's deportation was based on his repeated, unlawful entries into the United States, after having been previously deported, and not on his conviction in this case.

Moreover, if appellant reenters the United States unlawfully after having been deported, he will be subject to criminal prosecution and imprisonmentfor up to 20 years. (8 U.S.C. § 1326, subd. (b)(2).) alternative would have been to “plead up”to a moreserious offensethat would have been immigration-neutral.

Moreover, if Mr. Martinez reenters the United States unlawfully after having been deported, he will be subject to criminal prosecution and imprisonmentfor up to 20 years. (8 U.S.C. § 1326, subd. (b)(2).) 1016.5 motion, and affirmed.

Case 1:15-cr-00769-AJN Document 163 Filed 07/15/16 Page 46 of 74 38 statutes. See, e.g., United States v. Resendiz-Ponce, 549 U.S. 102, 109-11 (2007) (declining to extend Russell to indictment that charged attempted illegal reentry, in violation of 8 U.S.C. § 1326(a), but failed to specify an overt act). The Second Circuit has explained that the message of the Supreme Court’s decisions in cases like Russell and Resendiz-Ponce “is that for certain statutes specification of how a particular element of a criminal charge will be met (as opposed to categorical recitation of the element) is of such importance to the fairness of the proceeding that it must be spelled out in the indictment, but there is no such universal requirement.”

742 F.3d 896, 899 (9th Cir. 2014). In that case, the defendant, a supervised releasee, was arrested and charged with illegal reentry, in violation of 8 U.S.C. § 1326. While he remained in custody, “the U.S. Probation Office filed a petition to revoke [the defendant’s] supervised release, based on the [new] illegal entry charge[].”

Significantly, presence without a valid immigration status is not synonymouswithillegal entry into the United States.” Thus, although federal law criminalizesillegal entry, 8 U.S.C. § 1325, andillegal re-entry, 8 U.S.C. § 1326, no provision makesit a crime to be present without authorization or removable without other conduct. (Cf.

Unlawful presence becomes an element of a criminal offense, however, when an alien is found in the United States after having been formally removed or after voluntarily departing from the United States pending execution of a final removal order. See 8 U.S.C. § 1326. Unlawful entry into the United States is a crime.

; Hamling, 418 U.S. at 118 (distinguishing Russell based on the fact that it involved a different statutory offense). In Resendiz-Ponce, where the defendant was charged with attempting to reenter the United States after deportation, in violation of 8 U.S.C. § 1326(a), the Court of Appeals dismissed the indictment because it failed to allege “any specific over act” by the defendant. 127 S.Ct. at 785-86.