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United States v. Fernando Ramos-Cruz

Court of Appeals for the Ninth Circuit · 09-50670 · 2010-12-16 · Unpublished

UNITED STATES of America, Plaintiff—Appellee, v. Fernando RAMOS-CRUZ, Defendant—Appellant

Proceeding
appeal
Trial court
United States District Court for the Southern District of California
Trial judge
Janis L. Sammartino (district judge)
Outcome
reversed — REVERSED AND REMANDED.
Area
criminal
Panel
Stephen S. Trott (author), Sandra S. Ikuta, Kim M. Wardlaw

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion

FILED NOT FOR PUBLICATION DEC 16 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50670 Plaintiff - Appellee, D.C. No. 3:08-cr-04494-JLS-1 v. MEMORANDUM * FERNANDO RAMOS-CRUZ, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Argued and Submitted December 9, 2010 Pasadena, California Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

The IJ’s classification of Ramos-Cruz’s felony DUI conviction under California Vehicle Code § 23152(b) as an aggravated felony was an error. See Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir. 2002). That this error became apparent only in light of later-decided * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. authority does not alter our analysis. Compare United States v. Pallares-Galan, 359 F.3d 1088, 1103–04 (9th Cir. 2004), with Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040–41 (9th Cir. 2007), and Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1172–73 (9th Cir. 2001). Therefore, the IJ’s failure to inform Ramos-Cruz of his eligibility for relief from removal violated Ramos-Cruz’s due process rights, and his waiver of appeal from the removal order cannot bar him from collaterally attacking that order. See 8 U.S.C. § 1326(d)(1)–(2); United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (“The exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.”).

Ramos-Cruz has also demonstrated that he was prejudiced by the IJ’s error, see 8 U.S.C. § 1326(d)(3), because the sole basis for his removal was that he had committed an aggravated felony, namely, his felony DUI. See United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). The 2004 and 2008 reinstatement orders are irrelevant to the question of prejudice, because a reinstatement of an invalid removal order is itself invalid. United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir. 2010).

2 Accordingly, we reverse Ramos-Cruz’s conviction and remand to the district court with instructions to vacate the underlying indictment. Because we reverse Ramos-Cruz’s conviction, we need not reach his arguments regarding his sentence.

REVERSED AND REMANDED.