FILED
NOT FOR PUBLICATION
JAN 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50014
Plaintiff-Appellee, D.C. No. 3:15-cr-00645-H-1
v. MEMORANDUM*
JOSE JESUS MENDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Court Judge, Presiding
Argued and Submitted January 11, 2017
Pasadena, California
Before: KOZINSKI and WATFORD, Circuit Judges, and BENNETT,** District
Judge.
Defendant-Appellant Jose Mendez appeals from a conviction and sentence
for improper reentry by an alien in the United States, in violation of 8 U.S.C. §
1326. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
1. The district court did not err in denying Mendez’s motion under 8
U.S.C. § 1326(d) to dismiss the information. “We review de novo a claim that a
defect in a prior removal proceeding precludes reliance on the final removal order
in a subsequent § 1326 proceeding.” United States v. Reyes-Bonilla, 671 F.3d
1036, 1042 (9th Cir. 2012) (citation omitted).
A defendant collaterally attacking a removal order must show: (1) he
exhausted his administrative remedies; (2) the deportation proceedings improperly
denied him judicial review; and (3) the entry of the removal order was
fundamentally unfair. 8 U.S.C. § 1326(d). We have held that an underlying
removal order is fundamentally unfair “when the deportation proceeding violated
the alien’s due process rights and the alien suffered prejudice as a result.” Reyes-
Bonilla, 671 F.3d at 1043 (quoting United States v. Arias-Ordonez, 597 F.3d 972,
976 (9th Cir. 2010)). “Where the relevant form of relief is discretionary, the alien
must make a ‘plausible’ showing that the facts presented would cause the Attorney
General to exercise discretion in his favor.” United States v. Rojas-Pedroza, 716
F.3d 1253, 1263 (9th Cir. 2013) (citation and internal quotation marks omitted).
For the Attorney General to grant discretionary relief, Mendez would have to show
that a qualifying relative bears the burden of hardships that are “exceptional and
extremely unusual.” 8 C.F.R. § 212.7(d).
2
Mendez attempts to evade the force of § 1326(d) by claiming that his
challenge is not a collateral attack on the underlying deportation proceeding, but
rather a challenge related to the statutory elements of a § 1326(a) offense—that the
government failed to prove the required element that he had previously been
“deported.” Mendez claims he was not “deported” for purposes of 8 U.S.C. § 1326
because the Final Administrative Removal Order was issued before he was served
with the Form I-851 notice was a “legal nullity.” No Ninth Circuit or federal case
law suggests that characterizing a procedural defect as a “legal nullity” renders
§ 1326(d) inapplicable.
Mendez also collaterally attacks the underlying removal order by claiming
that attempted murder under California law is not an “aggravated felony” for the
purposes of 8 U.S.C. § 1228(b). We reject his theory that People v. Cruz-Santos,
2015 WL 7282040 (Cal. Ct. App. Nov. 18, 2015), renders attempted murder under
California law broader than the generic form of the offense. Given that the
marijuana grow operation in that case was armed and potentially violent, Mendez
has failed to show that there is “something special” about California's application
of the natural-and-probable-consequences doctrine to attempted murder that
criminalizes conduct that most jurisdictions would not consider attempted murder.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 191 (2007); see United States v.
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Albino-Loe, 747 F.3d 1206, 1214 (9th Cir. 2014).
Nor does Mendez’s collateral attack succeed on his claim that the agency
violated his due-process rights by placing him in expedited removal proceedings,
in which discretionary relief under 8 U.S.C. § 1182(h) was not available.
Mendez’s challenge under §1326(d) fails. Even if we assume, arguendo, that
Mendez’s due-process rights were violated, he was not prejudiced by the issuance
of the removal order before he was served with the Form I-851 notice. Under the
plain language of § 1182(h), his conviction for attempted murder rendered him
statutorily ineligible for that relief.
2. Mendez also argues that the district court erred in applying the
sixteen-level sentencing enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), on
his view that the government needed to prove that his prior deportation was valid
by clear and convincing evidence in order for the enhancement to apply. Because
we reject Mendez’s collateral attack on his underlying removal order, it could
support his prosecution under § 1326 and the government thus needed to prove
only that Mendez was physically removed from the country in order to enhance his
advisory sentencing range under § 2L1.2. See United States v. Rodriguez-Ocampo,
664 F.3d 1275, 1278 (9th Cir. 2011) (per curiam). Moreover, because Mendez’s
collateral attack raised only questions of law, it is irrelevant to the analysis that the
4
government carried the burden of proof at the sentencing phase. Thus, the district
court did not err in applying the sixteen-level sentencing enhancement.
AFFIRMED.
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