United States v. Elizardo Luna-Magdaleno

FILED
NOT FOR PUBLICATION JUL 19 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50430

Plaintiff - Appellee, D.C. No. 3:11-cr-03086-MMA-1

v.
MEMORANDUM*
ELIZARDO LUNA-MAGDALENO,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Argued and Submitted July 9, 2013
Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

Elizardo Luna-Magdaleno appeals from his conviction and sentence for

attempted entry after deportation in violation of 8 U.S.C. § 1326.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Luna-Magdaleno first contends that the district court erred in denying his

motion to dismiss the indictment, in which he challenged the validity of all three

removal orders on which the government relied. Only one valid removal order is

necessary to sustain the conviction, and we conclude that the 2005 removal order is

valid. Luna-Magdaleno does not contest that he was properly deemed removable

in 2005 because he had made a false claim of United States citizenship. See 8

U.S.C. § 1182(a)(6)(C)(ii). He argues only that the removal order was

fundamentally unfair because the immigration judge failed to advise him of various

forms of relief from removal. However, he concedes that, of the four forms of

relief he initially identified, he was not actually eligible for voluntary departure or

cancellation of removal for certain nonpermanent residents. Luna-Magdaleno was

also ineligible for cancellation of removal nunc pro tunc because, under then-

existing law, his 1998 and 2000 burglary convictions were aggravated felonies.

See 8 U.S.C. § 1229b(a)(3); United States v. Velasco-Medina, 305 F.3d 839,

852–53 (9th Cir. 2002). Finally, even assuming that the immigration judge should

have informed him that he could ask to withdraw his application for admission, no

prejudice resulted because it is implausible that he would have been granted this

relief in light of his fraudulent attempt to gain entry. See United States v. Barajas-

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Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011), cert. denied, 132 S. Ct. 1983

(2012).

2. Luna-Magdaleno next contends that the district court erred by increasing

his offense level because the court incorrectly determined that he had been

previously removed after a conviction for an aggravated felony. Luna-Magdaleno

was convicted in 2002 of petty theft with a prior conviction under California Penal

Code sections 484 and 666. Following the modified categorical analysis we

applied in United States v. Rivera, 658 F.3d 1073, 1077–78 (9th Cir. 2011), Luna-

Magdaleno’s offense falls within the definition of the generic theft offense because

the conviction documents reflect that he pleaded guilty to the “steal, take, [and]

carry . . . away” prong of the statute. Cal. Penal Code § 484(a). Our decision in

Rivera is unaffected by the Supreme Court’s recent decision in Descamps v. United

States, 133 S. Ct. 2276 (2013), because the statute at issue here is divisible.

3. Finally, Luna-Magdaleno argues that the district court erred in applying 8

U.S.C. § 1326(b) to impose a sentence that exceeds the two-year maximum

provided for in § 1326(a). He acknowledges that § 1326(b) has been construed as

a penalty provision, rather than a separate crime, and that the district court was

therefore authorized to apply the prior-conviction enhancement under existing

precedent. See Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998). We

3
have already considered and rejected Luna-Magdaleno’s argument that subsequent

cases have overruled Almendarez-Torres. See United States v. Ruiz-Apolonio, 657

F.3d 907, 920–21 & n.11 (9th Cir. 2011), cert. denied, 132 S. Ct. 1614 (2012);

United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).

AFFIRMED.