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United States v. Antonio Lopez-Valle

Court of Appeals for the Ninth Circuit · 12-50253 · 2013-03-08 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Antonio LOPEZ-VALLE, Defendant-Appellant

Area
other
Panel
Thomas (author), Beistline, Andrew D. Hurwitz

Analysis

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Opinion

FILED NOT FOR PUBLICATION MAR 08 2013

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. 12-50253 Plaintiff - Appellee, D.C. No. 3:11-cr-04832-AJB-1 v. MEMORANDUM * ANTONIO LOPEZ-VALLE, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding Submitted March 6, 2013 ** Pasadena, California Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief 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 Ralph R. Beistline, Chief District Judge for the U.S. District Court for the District of Alaska, sitting by designation. Antonio Lopez-Valle appeals his conviction of attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Lopez argues that the district court erred in denying his motion to dismiss the indictment, which collaterally attacked the deportation order. “To succeed in such a challenge . . . an alien must demonstrate that: ‘(1) the alien 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 alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.’” United States v. Reyes-Bonilla, 671 F.3d 1036, 1042-43 (9th Cir. 2012) (quoting 8 U.S.C. § 1326(d)).

Even assuming arguendo that Lopez could satisfy the first two requirements, he cannot meet the third. To show fundamental unfairness, Lopez must establish prejudice. United States v. Bustos-Ochoa, ___ F.3d ___, 2012 WL 6579556, at * 2 (9th Cir. Dec. 18, 2012). Because he has been convicted of an aggravated felony he cannot do so. Id. at *2-3.

AFFIRMED.

Cites, in this corpus