FILED
NOT FOR PUBLICATION JUN 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50136
Plaintiff - Appellee, D.C. No. 2:09-cr-00410-PSG-1
v.
MEMORANDUM*
EDUARDO SANCHEZ-CALDERON,
AKA Eduardo Sanchez Calderon, AKA
Eduardo Gomez, AKA Rick Gomez, AKA
Ricardo Lopez, AKA Ricardo Gomez
Lopez, AKA Ricardo Sanchez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted June 7, 2011**
Pasadena, California
*
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).
Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***
Because Sanchez-Calderon’s motion to withdraw his guilty plea to the
§ 1326(a) violation was based on a claim of “[e]rroneous or inadequate legal
advice” regarding the possibility of a collateral attack on his 1994 deportation order,
there was no requirement that he cite a “reason for withdrawing the plea that did not
exist when the defendant entered his plea,” just that he show that this advice could
“plausibly . . . have motivated his decision to plead guilty.” United States v.
McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008) (internal quotation marks omitted).
But while the district court applied the wrong legal standard in considering
Sanchez-Calderon’s motion, any error is harmless because Sanchez-Calderon’s
2006 deportation order, which he admitted and does not challenge on appeal,
provided a separate basis for the § 1326 prosecution at issue, and a reasonable
person with no defense to one of the deportation orders underlying his criminal
prosecution would have pled guilty regardless of the invalidity of an earlier,
separate deportation proceeding. See United States v. Mayweather, 634 F.3d 498,
504–05 (9th Cir. 2010).
AFFIRMED.
***
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
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