FILED
NOT FOR PUBLICATION MAY 13 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50219
Plaintiff - Appellee, D.C. No. 3:11-cr-03255-WQH-1
v.
AMENDED MEMORANDUM*
ROBERTO FRANCISCO RAMOS-
PEREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted July 9, 2013**
Pasadena, California
Filed July 15, 2013
Amended May 13, 2014
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Defendant Roberto Ramos-Perez appeals the district court’s denial of his
motion to dismiss an indictment charging him with being a previously deported
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
alien found in the United States, in violation of 8 U.S.C. § 1326, and for using a
false document to gain admission to the United States, in violation of 18 U.S.C.
§ 1546(a). After the court denied his motion, Defendant entered a conditional
guilty plea, preserving the dismissal ruling for appeal. We affirm.
1. Defendant first argues that his deportation was invalid because his
conviction for assault with a deadly weapon, in violation of section 245(a)(1) of
the California Penal Code, was not a conviction for a crime of moral turpitude. In
Ceron v. Holder, No. 08-70836, 2014 WL 1274096 (9th Cir. Mar. 31, 2014) (en
banc), we remanded to the Board of Immigration Appeals the question whether, as
now interpreted by California courts, such a conviction is for a crime involving
moral turpitude. Here, though, the California jury also found that the enhancement
in California Penal Code section 12022.7(a) applied. As Defendant concedes, in
1991 at the time of his conviction, that section required the jury to find both that he
intended to inflict injury and that he in fact personally inflicted serious bodily
injury. See People v. Poroj, 117 Cal. Rptr. 3d 884, 891 (Ct. App. 2010)
(discussing elements of section 12022.7(a) before 1996 amendment). Ceron is
therefore distinguishable. See Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th
Cir. 2009) (noting that an assault conviction that necessarily involves the
aggravating factors of intent and serious injury is a crime involving moral
turpitude).
2
Defendant argues, though, that we may not consider the records of
conviction demonstrating that the jury found this enhancement, because the
immigration judge did not have those documents and did not rely specifically on
the enhancement. We remain unpersuaded that the indictment should be dismissed
on due process grounds. "[T]o succeed in his attack, [Defendant] must
demonstrate that he was prejudiced and that, therefore, the removal order was
fundamentally unfair." United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th
Cir. 2006). He has not established prejudice. Unlike in Camacho-Lopez,
Defendant was not "removed when he should not have been." Id. In examining
the question of prejudice, we may consider conviction-related documents that were
not before the immigration judge. See United States v. Bustos-Ochoa, 704 F.3d
1053, 1056–57 (9th Cir. 2012) (per curiam), cert. denied, 134 S. Ct. 301 (2013).
2. Defendant also argues that he is entitled to the "petty offense" exception
to inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), for his conviction of grand
theft, in violation of section 487 of the California Penal Code. This argument is
unavailing because it depends on the success of Defendant’s first argument. The
statutory exception is available only to "an alien who committed only one crime"
of moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(ii). Grand theft in violation of
section 487 of the California Penal Code, like assault with a deadly weapon, is a
crime of moral turpitude. Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994).
3
Because Defendant was convicted of two such crimes, he is not eligible for the
petty offense exception.
AFFIRMED.
4
United States v. Roberto Ramos-Perez
Combined Opinion