Category Archives: Nevada

United States v. Gustavo Carrillo-Lopez

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United States v. Gustavo Carrillo-Lopez, No. 3:20-cr-00026 (D. Nev., filed June 25, 2020); 21-10233 (9th Cir., filed August 20, 2021)

On June 25, 2020, Gustavo Carrillo-Lopez was indicted on one count of being a deported noncitizen present in the United States in violation of 8 U.S.C. § 1326(a) and (b) (Section 1326). On October 19, 2020, Mr. Carrillo-Lopez moved to dismiss his indictment on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In his motion to dismiss, Mr. Carrillo-Lopez argued that because Section 1326 was enacted with a discriminatory purpose and has a disparate impact on Latinx persons, the law is unconstitutional; as such, the court must dismiss the indictment.

In his briefing, Mr. Carrillo-Lopez presented extensive historical evidence about the racist origins of Section 1326, including how it was first enacted at the height of the eugenics movement and how the “Undesirable Aliens Act of 1929” was conceived, drafted, and enacted by white supremacists out of a belief that the “Mexican race” would destroy the racial purity of the United States and that Mexicans were “poisoning the American citizen.” Although the statute was recodified in 1952, Mr. Carrillo-Lopez argued that the 1952 reenactment did not cleanse Section 1326 of its racist origins and was likewise motivated by discriminatory intent. Moreover, he argued that Section 1326 disproportionally impacts Mexican and Latinx defendants, given that the overwhelming number of Border Patrol arrests along the southern border are of Mexicans or people of Latinx origin.

On January 22, 2021, the court held oral argument on the motion to dismiss, and on February 2, 2021, the court held an evidentiary hearing. Following the hearing, Mr. Carrillo-Lopez submitted a post-hearing brief outlining for the court how the 1952 recodification of Section 1326 made illegal reentry penalties even harsher and expanded grounds for deportation. On August 18, 2021, the court issued an order granting Mr. Carrillo-Lopez’s motion to dismiss, finding that because Section 1326 was enacted with a discriminatory purpose, the law has a disparate impact on Latinx persons, and that because the government failed to show that Section 1326 would have been enacted absent racial animus, Section 1326 violates the Equal Protection Clause of the Fifth Amendment. As such, the court ordered the United States to dismiss Mr. Carrillo-Lopez’s indictment and release him from federal custody. 

On August 19, 2021, the United States filed a notice of appeal to the Ninth Circuit. The Ninth Circuit heard oral arguments on December 8, 2022. On May 22, 2023, the Ninth Circuit reversed the district court’s decision, finding that Mr. Carrillo-Lopez did not meet his burden to prove Section 1326 was drafted with discriminatory animus. Mr. Carrillo-Lopez petitioned for rehearing en banc, arguing that the panel opinion conflicts with Supreme Court precedent and misapplied the Arlington Heights test. On September 8, 2023, the Ninth Circuit denied the petition for rehearing en banc, and the case was remanded to the district court. Mr. Carrillo-Lopez filed a petition for writ of certiorari to the Supreme Court on December 12, 2023, which was denied on January 23, 2024.

Back at the district court, a jury trial was set for April 8, 2025. Mr. Carillo-Lopez then advised the court of a change of plea without benefit of a plea agreement, and a hearing on the change took place March 19, 2025. Mr. Carillo-Lopez pleaded guilty to count 1 of the indictment, and a sentencing hearing took place on June 17, 2025.

Documents:

Counsel: Federal Public Defender of Nevada

Contact: Lauren Gorman | Assistant Federal Public Defender | Lauren_Gorman@fd.org