FILED
NOT FOR PUBLICATION MAR 15 2012
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. 11-50203
Plaintiff - Appellee, D.C. No. 3:10-cr-03366-WQH-1
v.
MEMORANDUM *
MARCELO GONZALEZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted March 7, 2012 **
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Marcelo Gonzalez-Lopez appeals his conviction following a conditional
guilty plea for attempted reentry 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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We affirm. Because the parties are familiar with the case history, we need not
recount it here.
I
Gonzalez-Lopez argues that the government’s failure to advise him of his
due process right to counsel in a language he could understand invalidated the
removal order that was the basis of the § 1326 conviction. The district court
denied his motion to dismiss the § 1326 indictment after finding that Gonzalez-
Lopez could not demonstrate a plausible claim of prejudice resulting from these
due process violations. We agree.
Prejudice cannot be presumed from a failure to adequately inform an alien of
his right to counsel when the alien is an aggravated felon. United States v. Reyes-
Bonilla No 10-50361, __ F.3d, __, slip op at 1173 (9th Cir. Feb. 6, 2012).
Because he was incarcerated in state prison for more than a year for a robbery
conviction under California Penal Code § 211, Gonzalez-Lopez is considered an
aggravated felon under 8 U.S.C. § 1101(a)(43)(f). See 8 U.S.C. § 1101(a)(43)(f)
(defining an aggravated felony as “a crime of violence for which the term of
imprisonment is at least one year”), United States v. McDougherty, 920 F.2d 569,
573 (9th Cir. 1990) (holding that “robbery under California law is...by definition a
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crime of violence”). Therefore, the district court correctly denied his motion to
dismiss the indictment.
II
Gonzalez-Lopez alternatively argues that the conviction documents relied
upon to establish his aggravated felony conviction were improperly certified and
could have been challenged by competent counsel. However, he presents no
evidence to cast doubt upon the authenticity of the certified abstract of judgment in
the file. Nor did he submit any evidence contrary to the facts disclosed in the
abstract. The certified abstract describes the criminal charge, discloses the fact of
conviction, and reflects the sentence.
Under the standards applicable to evidence admitted in immigration
proceedings, Gonzalez-Lopez was not denied his due process rights. See Rojas-
Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003) ( “‘[T]he sole test for
admission of evidence [in immigration proceedings] is whether the evidence is
probative and its admission is fundamentally fair.’”) (quoting Espinoza v. INS, 45
F.3d 308, 310 (9th Cir. 1995)).
AFFIRMED.
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