United States v. Roberto Bustos-Ochoa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-50471
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-04188-
DMS-1
ROBERTO BUSTOS-OCHOA ,
Defendant-Appellant. OPINION

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

Submitted November 9, 2012*
Pasadena, California

Filed December 18, 2012

Before: Dorothy W. Nelson and Diarmuid F. O’Scannlain,
Circuit Judges, and James K. Singleton,
Senior District Judge.**

Per Curiam Opinion

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
2 UNITED STATES V . BUSTOS-OCHOA

SUMMARY***

Criminal Law

Affirming a conviction for illegal reentry after
deportation, the panel held that an alien may not collaterally
attack his removal order by claiming that an immigration
judge failed to advise him about relief for which he was
statutorily ineligible, even if the government did not
introduce before the IJ noticeable documentation of the
aggravated felony conviction that renders him ineligible.

COUNSEL

Zandra L. Lopez, Federal Defenders of San Diego, Inc., San
Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney; Mark R. Rehe, Bruce
R. Castetter and Grace E. Oh, Office of the United States
Attorney, San Diego, California, for Plaintiff-Appellee.

OPINION

PER CURIAM:

We must decide whether an alien charged with illegal
reentry after deportation may collaterally attack his removal

***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V . BUSTOS-OCHOA 3

order by claiming that an immigration judge failed to advise
him about relief for which he was statutorily ineligible.

I

Bustos-Ochoa, a native and citizen of Mexico, first
entered the United States in 2002 without being admitted or
inspected. Less than a year later, he was served with a Notice
to Appear alleging that he was removable as “an alien present
in the United States who has not been admitted or paroled.”

Prior to his removal hearing, Bustos-Ochoa had been
convicted of three crimes—one of which was a felony charge
for “possession for purpose of sale a controlled substance, to
wit: methamphetamine” in violation of California Health &
Safety Code § 11378. Bustos-Ochoa stated that he “did
unlawfully have in [his] possession for purpose of sale,
methamphetamine” in his signed guilty plea.

Bustos-Ochoa appeared before the immigration judge (IJ)
in removal proceedings. While questioning Bustos-Ochoa
under oath, the IJ asked whether he had ever been convicted
of any crimes in the United States. Initially, Bustos-Ochoa
denied having any convictions, but he later admitted to
entering a guilty plea for “possession of methamphetamine”
after the government informed the IJ that Bustos-Ochoa had
been arrested for that charge. The IJ then told Bustos-Ochoa,
“You have been convicted for a drug crime. I cannot give
you voluntary departure.” The IJ entered an order of
removal, and Bustos-Ochoa was deported to Mexico in 2003.
The government had never introduced into evidence Bustos-
Ochoa’s charging document or his signed guilty plea.
4 UNITED STATES V . BUSTOS-OCHOA

In 2010, Bustos-Ochoa attempted to reenter the United
States using a false identification. He was charged in a two-
count indictment with illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and knowingly using or
attempting to use a document bearing the name of another
individual to gain admission to the United States in violation
of 18 U.S.C. § 1546(a).

Bustos-Ochoa moved to dismiss the illegal reentry charge,
claiming that his 2003 removal was fundamentally unfair
because the IJ failed to advise him about the availability of
voluntary departure. The district court denied the motion and
determined that it could consider documents that the
government submitted, even though they had not been
presented to the IJ in 2003. These documents conclusively
established that Bustos-Ochoa was an aggravated felon at the
time of his 2003 removal under the modified categorical
approach. Because he was thus ineligible for voluntary
departure at the time of his removal, the district court
concluded that he was unable to make a showing of prejudice.

Following a stipulated-facts bench trial, Bustos-Ochoa
was convicted on both counts in the indictment. The district
court sentenced him to 48 months in prison and three years of
supervised release. He filed this timely appeal challenging
both the district court’s ruling on his motion to dismiss and
his sentence.

II

Aliens charged with illegal reentry under 8 U.S.C. § 1326
have a limited right to challenge collaterally the validity of
the removal order underlying their illegal reentry offense.
United States v. Reyes-Bonilla, 671 F.3d 1036, 1042–43 (9th
 UNITED STATES V . BUSTOS-OCHOA 5

Cir. 2012); see also 8 U.S.C. § 1326(d). To succeed in this
challenge, the alien must establish that (1) he exhausted any
available administrative remedies, (2) the deportation
proceedings at which the order was issued improperly denied
him the opportunity for judicial review, and (3) the entry of
the order was “fundamentally unfair.” Reyes-Bonilla,
671 F.3d at 1042–43 (quoting 8 U.S.C. § 1326(d)). Entry of
an order is “fundamentally unfair” if “the deportation
proceeding violated the alien’s due process rights and the
alien suffered prejudice as a result.” Id. at 1043 (quoting
United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir.
2010)).

To prove prejudice, Bustos-Ochoa “must demonstrate
that he had plausible grounds for relief from deportation.”
United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th
Cir. 1999). Thus, he must show that any error “prejudiced
[him] in a manner so as potentially to affect the outcome of
the proceedings; a mere showing that [he] would have availed
himself of the procedural protections denied him is not
enough.” United States v. Cerda-Pena, 799 F.2d 1374, 1379
(9th Cir. 1986). An alien who is barred from receiving relief
cannot meet this plausibility standard. United States v.
Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir. 2003).

Bustos-Ochoa concedes that—if the evidence presented
to the district court is considered—his 2003 conviction under
California Health & Safety Code § 11378 qualifies as an
aggravated felony under the modified categorical approach.
Such conviction thus rendered him statutorily ineligible for
voluntary departure at the time of his removal. See 8 U.S.C.
§ 1229c(a)(1) (noting that aliens deportable under 8 U.S.C.
§ 1227(1)(2)(A)(iii)—the aggravated felony statute—are not
eligible for voluntary departure). Nonetheless, Bustos-Ochoa
6 UNITED STATES V . BUSTOS-OCHOA

argues that he plausibly could have obtained voluntary
departure because the government did not proffer noticeable
documents establishing his aggravated felony conviction
before the IJ, and on that inconclusive record, he would have
been eligible for relief.

Bustos-Ochoa’s argument is without merit. First, his
position, if accepted, would shift impermissibly the burden of
proof in immigration hearings. See 8 C.F.R. § 1240.8(d)
(placing the burden of proof to establish eligibility for
discretionary relief on the alien). It would require that the
government affirmatively disprove an alien’s eligibility for
discretionary relief—even before the alien applied for that
relief—or risk successful collateral attack on the removal
order in subsequent proceedings.

Moreover, Bustos-Ochoa’s assertion that he could have
obtained relief if he had pursued an application because the
government might have failed to present conclusive evidence
of his conviction piles speculation atop speculation and falls
far short of showing that relief was “plausible.” Cf. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (plausibility
requires that the “right to relief [rise] above the speculative
level”).

In short, an alien who is statutorily barred from obtaining
relief from removal cannot be prejudiced by an IJ’s failure to
inform him about the possibility of applying for such relief.
This remains true even if the government does not introduce
noticeable documentation of the alien’s aggravated felony
conviction before the IJ.
 UNITED STATES V . BUSTOS-OCHOA 7

III

Because Bustos-Ochoa was an aggravated felon and was
therefore ineligible for voluntary departure, he could not be
prejudiced by the IJ’s failure to advise him about that form of
relief. Thus, he failed to show that the removal order
underlying his illegal reentry conviction was fundamentally
unfair, and his motion to dismiss under 8 U.S.C. § 1326(d)
was properly denied.

IV

Bustos-Ochoa also appeals his 48-month sentence for
conviction under 8 U.S.C. § 1326. Relying on Apprendi v.
New Jersey, 530 U.S. 466 (2000), he argues on appeal that the
statutory maximum sentence for his illegal reentry offense is
two years under 8 U.S.C. § 1326(a) and that the statutory
maximum of 20 years set forth in 8 U.S.C. § 1326(b)(2)
should not apply because the government did not allege and
prove a prior aggravated felony conviction at his trial. As he
recognizes, the Supreme Court has expressly addressed and
rejected this argument. See Almendarez-Torres v. United
States, 523 U.S. 224, 226–27 (1998). Additionally, as
Bustos-Ochoa admits, this court has expressly rejected his
further argument that subsequent Supreme Court precedent
overruled Almendarez-Torres. See, e.g., United States v.
Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per
curiam) (“We have repeatedly held, however, that
Almendarez-Torres is binding unless it is expressly overruled
by the Supreme Court.”). Accordingly, his sentence is valid.

AFFIRMED.