Opinion
No. 09-50423.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 19, 2010.
Rebecca Suzanne Kanter, Southern District of California, San Diego, CA, for Plaintiff-Appellee.
Bridget Lynn Kennedy, Esquire, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, John A. Houston, District Judge, Presiding. D.C. No. 3:08-cr-02582-JAH-1.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appellant Pedro Perez-Godinez, a citizen of Mexico, pled guilty to violating 8 U.S.C. § 1326, which makes it illegal for an alien to re-enter the United States after being deported or removed. He appeals the trial court's ruling on his motion to dismiss the indictment in which he collaterally attacks the Final Administrative Removal Order ordering his removal.
In 2004, a jury convicted Appellant of first degree robbery in concert in violation of California Penal Code § 212.5/213(a)(1)(A). Appellant also received an enhancement under California Penal Code § 12022(a)(1) for the use of a firearm in the commission of the robbery. The state court sentenced Appellant to six years imprisonment on the robbery count with an additional one-year imprisonment for the firearm enhancement.
While serving this sentence, a federal agent served Appellant with a Notice of Intent to Issue a Final Administrative Removal Order. The Notice alleged that Appellant was subject to deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because his California robbery conviction was an aggravated felony. After the entry of the Removal Order finding Appellant deportable as charged, Appellant was deported to Mexico.
Shortly after being deported, Appellant was apprehended while attempting to illegally re-enter the United States, and a Grand Jury charged Appellant with violating 8 U.S.C. § 1326. Appellant then filed a motion to dismiss the indictment collaterally attacking the previous Removal Order as a violation of his rights as protected by the Due Process Clause of the Fifth Amendment. He contends that because his prior conviction is not an aggravated felony, he was improperly subjected to the expedited removal proceedings of 8 U.S.C. § 1228 and, thus, denied his right to a hearing before an immigration judge.
After a hearing, the trial court denied Appellant's motion. Appellant then entered a conditional guilty plea, allowing him to appeal the trial court's order denying his motion to dismiss. Appellant timely filed this appeal. We review the trial court's denial of the motion to dismiss de novo. United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010); United States v. Leon-Paz, 340 F.3d 1003, 1004 (9th Cir. 2003).
A criminal defendant charged pursuant to Section 1326 may collaterally attack the underlying removal order in a criminal proceeding. United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). In order to prevail, the defendant must demonstrate three elements: "(1) [the defendant] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order' was issued improperly deprived [the defendant] of the opportunity for judicial review: and (3) the en ay of the order was fundamentally unfair'" § 1326(d); Arias-Ordonez, 597 F.3d at 976 United States v. Lopez-Velasquez, 5i58 F.3d 113V). 1142 (9th Cir. 2009). A removal order is "fundamentally unfair" when the underlying deportation proceeding violated the defendant's due process rights, and the defendant suffers prejudice as a result of the violation. Arias-Ordonez 597 F.3d at 976.
The pertinent question on appeal is whether appellant was subject to expedited removal pursuant to 8 U.S.C. § 1228 as an aggravated felon because of his prior robbery conviction. The trial court, did not err in finding that Appellant was subject to deportation as an aggravated felon based on iris California robbery conviction, which is categorically a crime of violence See United States v. McDougherty. 920 F.2d 569, 573 (9th C r.1990) "([R]obbery under California law is . . by definition a crime of violence.)" Because Appellant was convicted of a crime of violence tor which the term of imprisonment is at least one year, he was subject to expedited removal under Section 1228. Therefore, Appellant cannot sustain a collateral attack on has removal order' because he cannot satis for his burden of demonstrating that the order was fundamentally unfair. The trial court properly denied Appellant's motion to dismiss the indictment.