United States v. Carlos Lopez-Lopez

FILED
NOT FOR PUBLICATION APR 04 2012

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50198

Plaintiff - Appellee, D.C. No. 3:10-cr-01796-WQH-1

v.
MEMORANDUM*
CARLOS ROGELIO LOPEZ-LOPEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Argued and Submitted February 16, 2012
Pasadena, California

Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.**

Defendant Carlos Rogelio Lopez-Lopez (“Lopez”) was indicted on charges

of attempted re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b),

and false claim to United States Citizenship, in violation of 18 U.S.C. § 911. A

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.
jury found Lopez guilty on both counts. Lopez appeals his convictions and

sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We

address Lopez’s arguments in turn.

1. Lopez’s collateral attack under 8 U.S.C. § 1326(d) on his prior order of

removal fails because Lopez cannot establish that he had a “plausible ground for

relief from [removal].” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050

(9th Cir. 2004) (internal quotation marks omitted).

Lopez cannot establish that he had a plausible ground for relief from

removal because his 2008 conviction for “receipt of a stolen vehicle,” in violation

of California Penal Code § 496d(a), was categorically an “aggravated felony”

under 8 U.S.C. § 1101(a)(43)(G). See Alvarez-Reynaga v. Holder, 596 F.3d 534,

536-37 (9th Cir. 2010) (holding that alien’s conviction for “receipt of a stolen

vehicle,” in violation of California Penal Code § 496d(a), was categorically an

aggravated felony under 8 U.S.C. § 1101(a)(43)(G)); Verdugo-Gonzalez v. Holder,

581 F.3d 1059, 1062 (9th Cir. 2009) (holding that alien’s conviction for “receipt of

stolen property,” in violation of California Penal Code § 496(a), was categorically

an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G)). Because Lopez’s

conviction was categorically an aggravated felony, Lopez was removable under 8

U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and was

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also ineligible for cancellation of removal or voluntary departure. See 8 U.S.C. §§

1229b(a)(3), 1229c(a)(1).

2. Even if the district court erred when it applied a sentencing enhancement

under U.S.S.G. § 2L1.2(b)(1)(A)(i) for Lopez’s prior conviction under California

Health & Safety Code § 11352(a), any such error was harmless. See United States

v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (“When an ‘alleged error is harmless, it

is not a ground for resentencing.’”) (internal alteration omitted) (quoting United

States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008)). Lopez’s prior conviction

under California Health & Safety Code § 11351 could have justified the

enhancement.

AFFIRMED.

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