United States v. Fernando Perez-Hernandez

FILED
NOT FOR PUBLICATION
JUL 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10320

Plaintiff-Appellee, D.C. No.
2:15-cr-00132-MCE-1
v.

FERNANDO PEREZ-HERNANDEZ, MEMORANDUM*
AKA Alfredo Reyes Morales,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding

Submitted July 13, 2017**
San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,*** District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Fernando Perez-Hernandez appeals his conviction for being a deported alien

found in the United States in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. The district court did not err in denying Perez-Hernandez’s motion to

dismiss the indictment based on alleged due process violations in his underlying

removal proceedings. Perez-Hernandez argues that the immigration judge (“IJ”)

failed to inform him that he was eligible for relief from removal by way of

voluntary departure, thus rendering his order of removal “fundamentally unfair.”

See 8 U.S.C. § 1326(d); see also United States v. Ortiz-Lopez, 385 F.3d 1202, 1204

n.2 (9th Cir. 2004) (per curiam). To establish that an underlying removal order is

fundamentally unfair, Perez-Hernandez must show that (1) his “due process rights

were violated by defects in his underlying deportation proceeding, and (2) he

suffered prejudice as a result of the defects.” United States v. Ubaldo-Figueroa,

364 F.3d 1042, 1048 (9th Cir. 2004) (citation omitted).

Even assuming that Perez-Hernandez’s due process rights were violated

(because the government did not produce the record of conviction for review by

the IJ), he cannot establish that he suffered prejudice. See United States v. Bustos-

Ochoa, 704 F.3d 1053, 1056 (9th Cir. 2012) (per curiam) (rejecting a defendant’s

argument that an “inconclusive record” (based on the government’s failure to

2
proffer noticeable documents) made him “eligible for relief”). To show Perez-

Hernandez suffered prejudice, he must show there were “plausible grounds for

relief,” United States v. Ramos, 623 F.3d 672, 684 (9th Cir. 2010); he “cannot

succeed by merely showing a theoretical possibility of relief,” United States v.

Raya-Vaca, 771 F.3d 1195, 1207 (9th Cir. 2014) (quotation marks, alteration, and

citation omitted). He must show “some evidentiary basis on which relief could

have been granted.” Id. (citation omitted).

However, Perez-Hernandez can demonstrate only that relief was merely

conceivable or possible. First, Count I of the criminal complaint alleged he was in

possession of a controlled substance (methamphetamine) for sale. Second, the

plea agreement evidenced that Perez-Hernandez pleaded no contest to Count I,

dismissing the special assessment (excessive methamphetamine).1 Finally, in the

plea agreement, Perez-Hernandez stipulated that there was a “factual basis” for his

plea as set forth in the police report, which report specifically set forth that he

possessed methamphetamine. See United States v. Almazan-Becerra, 537 F.3d

1094, 1097-98 (9th Cir. 2008). Had Perez-Hernandez attempted to pursue

1
Perez-Hernandez argues that there is no evidence that he pleaded no
contest to possession of methamphetamine for sale, because the record shows that
he pleaded no contest to an information rather than a criminal complaint.
However, Perez-Hernandez offers only speculation without any evidence, that the
information does not contain a reference to methamphetamine.
3
voluntary departure, based on the foregoing facts, he would have been ineligible

based on the conviction under California Health and Safety Code section 11378

involving methamphetamine. See United States v. Valdavinos-Torres, 704 F.3d

679, 690 (9th Cir. 2012) (noting that “[b]ecause his prior conviction under Section

11378 was for an aggravated felony, [petitioner’s] ability to obtain immigration

relief . . . was severely limited”). Thus, Perez-Hernandez cannot establish

prejudice.

2. Defense counsel did not render ineffective assistance of counsel by failing to

introduce a transcript of Perez-Hernandez’s change of plea hearing in the state

court.2 Although the transcript reveals that Perez-Hernandez pleaded no contest to

an “information” rather than the “criminal complaint,” nothing therein suggests

that Perez-Hernandez was not convicted of an aggravated felony (involving the

possession of methamphetamine for sale). Thus, there is no evidence that he was

prejudiced by counsel’s failure to present the transcript. To the contrary, Perez-

Hernandez’s plea agreement, presented to the court when pleading to the

information, shows that he admitted that he possessed methamphetamine when he

stipulated that there was a “factual basis” for his plea as set forth in the police

report. See Almazan-Becerra, 537 F.3d at 1097-98.

2
Perez-Hernandez’s motion for judicial notice is GRANTED.
4
AFFIRMED.