FILED
NOT FOR PUBLICATION OCT 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30383
Plaintiff - Appellee, D.C. No. 2:09-cr-06057-RHW-1
v.
MEMORANDUM *
DIONCIO VILLANUEVA
LABASTIDA, AKA Dionicio Villanueva-
Labastida,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Submitted October 12, 2011 **
Seattle, Washington
Before: KOZINSKI, Chief Judge, BEEZER and PAEZ, Circuit Judges.
1. The retroactivity principle articulated in INS v. St. Cyr, 533 U.S. 289, 326
(2001), applies only to prior convictions by plea bargain. See Armendariz-Montoya
*
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).
.
page 2
v. Sonchik, 291 F.3d 1116, 1121–22 (9th Cir. 2002). Because Labastida’s 1989
conviction was by jury trial, denial of relief on account of that conviction did not
render his 1992 deportation order “fundamentally unfair.” 8 U.S.C. §
1326(d)(3).
2. “[A] criminal conviction cannot be attacked collaterally in a deportation
proceeding.” Mendez-Alcaraz v. Gonzalez, 464 F.3d 842, 845 n.14 (9th Cir. 2006).
Accordingly, Labastida’s allegations about his prior criminal proceedings, if true,
were not a “plausible ground for relief from deportation,” United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (internal quotation marks omitted),
and so couldn’t render his deportation orders fundamentally unfair.
3. “[F]amily ties and responsibilities are not ordinarily relevant in
determining whether a departure [from the applicable Guidelines range] may be
warranted.” U.S.S.G. § 5H1.6. Labastida’s adult children living in the United
States do not present an exceptional case, so the district judge didn’t abuse his
discretion in denying a downward departure. See Gall v. United States, 552 U.S.
38, 51 (2007).
AFFIRMED.