United States v. Braulio Gonzalez-Tejeda

Opinion

FILED NOT FOR PUBLICATION APR 10 2015

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50435 Plaintiff - Appellee, D.C. No. 3:12-cr-02967-WQH-1 v. MEMORANDUM* BRAULIO GONZALEZ-TEJEDA, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted April 8, 2015** Pasadena California Before: SILVERMAN and BEA, Circuit Judges and DONATO,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 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 James Donato, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. Defendant Braulio Gonzalez-Tejeda appeals the district court’s denial of his 8 U.S.C. § 1326(d) motion to dismiss the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the conviction.

The district court did not err when it considered judicially noticeable conviction documents not admitted at the removal hearing to decide whether the defendant had a plausible claim for relief from removal, i.e., whether the defendant was removable as charged for having committed a drug trafficking aggravated felony. United States v. Bustos-Ochoa, 704 F.3d 1053, 1056-57 (9th Cir. 2012)

(per curiam), amended, 714 F.3d 1133 (9th Cir. 2013). The defendant cannot prove prejudice because the conviction documents confirm the defendant’s admission to the immigration judge that the conviction was a drug trafficking aggravated felony. Id.

Because the defendant cannot prove prejudice, in any event, we do not reach his argument that his administrative appeal waiver was not considered and intelligent.

AFFIRMED.