UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe HERNANDEZ-GUERRERO, Defendant-Appellant

O’SCANNLAIN, Circuit Judge:

We must decide whether Congress has the power to criminalize reentry into the United States by a previously deported alien.

I

On January 19,1997, Border Patrol agents arrested Guadalupe Hernandez-Guerrero near Campo, California, just north of the Mexican border. Hernandez-Guerrero waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and advised the arresting officers that he was a Mexican citizen and that he had entered the United States illegally-

In the district court, the government claimed that Hernandez-Guerrero…