NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 20 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50213
Plaintiff - Appellee, D.C. No. 3:08-CR-03890-WQH-1
v.
MEMORANDUM*
PALOMON SANCHEZ-LARA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted April 13, 2011**
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Petitioner Palomon Sanchez-Lara (“Sanchez-Lara”) appeals his conviction
and sentence pursuant to 8 U.S.C. § 1326, stemming from his illegal reentry into
the United States after two prior deportations. In this appeal, Sanchez-Lara argues
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
that the underlying deportation order violated his due process rights and therefore
may not be used to establish a predicate element of the illegal reentry offense.
Sanchez-Lara also challenges the 90-month sentence imposed by the district court.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and
we affirm.
“We review de novo a district court’s decision to deny a defendant’s
collateral attack on a deportation proceeding.” United States v. Garza-Sanchez,
217 F.3d 806, 808 (9th Cir. 2000). In order to succeed on a collateral attack, a
defendant must establish (1) that he exhausted available administrative remedies,
(2) that the deportation proceedings deprived him of the opportunity for judicial
review, and (3) that the deportation order was “fundamentally unfair.” 8 U.S.C.
§ 1326(d). A defendant need not fulfill the exhaustion requirement when an IJ
fails to “inform him that he [is] eligible for relief from deportation.” United States
v. Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004). Additionally, an IJ’s
failure to inform a defendant of possible relief deprives him of the opportunity for
judicial review. See United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 n.2 (9th
Cir. 2004).
The entry of Sanchez-Lara’s deportation order was “fundamentally unfair” if
(1) his due process rights were violated by defects in the underlying deportation
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proceedings, and (2) he was prejudiced by those defects. Ubaldo-Figueroa, 364
F.3d at 1048 (citations omitted). An individual need not prove that he “actually
would have been granted relief” in order to establish prejudice, but instead must
show that he had a “plausible” ground for relief from deportation. Id. at 1050
(citations omitted).
Sanchez-Lara argues he was eligible for relief in the form of voluntary
departure. At the time his 2003 deportation order was entered, Sanchez-Lara had a
conviction for corporal injury to a spouse, for which he ultimately served 293 days
in jail. We find that this criminal history was not sufficiently balanced by
equitable factors in his favor. We therefore conclude that Sanchez-Lara fails to
establish prejudice because he did not have a plausible claim for relief through pre-
conclusion voluntary departure.1 Accordingly, his collateral attack of the 2003
deportation order fails.
Finally, we reject Sanchez-Lara’s argument that the district court imposed an
unreasonable sentence. We review the reasonableness of a sentence “under the
deferential abuse of discretion standard.” United States v. Overton, 573 F.3d 679,
700 (9th Cir. 2009). The district court calculated a sentencing guideline range of
1
Likewise, Sanchez-Lara could not qualify for voluntary departure at the
conclusion of his proceedings, as it is not plausible that he would have established
good moral character. See 8 U.S.C. § 1229c(b)(1)(B).
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77 to 96 months. It gave a detailed statement of the 18 U.S.C. § 3553 factors and
concluded that a 90-month sentence was “the minimum sentence to satisfy the
3553 factors.” We conclude that the district court did not abuse its discretion in
imposing the within-guideline sentence.
AFFIRMED.
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