United States v. Pablo Calderon-Jimenez , 637 F. App'x 295 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 07 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50534
Plaintiff - Appellee, D.C. No. 3:13-CR-02467-JAH-1
v.
MEMORANDUM*
PABLO CALDERON-JIMENEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted December 11, 2015
Pasadena, California
Before: NOONAN, LUCERO**, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
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Pablo Calderon-Jimenez appeals his conviction and sentence for being a
removed alien found in the United States in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court did not err in denying Calderon-Jimenez’s motion to
dismiss the indictment due to violations of due process in his 2008 expedited
removal proceeding. Even assuming that the 2008 removal proceeding was
defective, Calderon-Jimenez has failed to demonstrate any resulting prejudice as he
had no “plausible grounds for relief.” United States v. Moriel-Luna, 585 F.3d
1191, 1196 (9th Cir. 2009) (quotation omitted). First, because Calderon-Jimenez
was not “inspected and admitted or paroled into the United States” in 2008, he was
ineligible for adjustment of status and waiver of inadmissibility. See 8 U.S.C. §
1255(a); 8 U.S.C. § 1225(b)(1)(A)(I) (where alien is inadmissible under 8 U.S.C. §
1182(a)(7), the inspection officer in an expedited removal proceeding “shall order
the alien removed from the United States without further hearing”); 8 U.S.C. §
1182(h) (listing five covered grounds subject to waiver of inadmissibility none of
which are 8 U.S.C. § 1182(a)(7)). To the extent Calderon-Jimenez seeks to argue
that he should have been paroled, such determinations are the discretion of the
Attorney General and “cannot be appealed to IJs or courts.” Rodriguez v. Robbins,
804 F.3d 1060, 1081 (9th Cir. 2015). Second, Calderon-Jimenez cannot make, as
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he must, a plausible showing that the immigration officer would have exercised
discretion in granting him a withdrawal of his application for admission. United
States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011). The six factors
set forth in the Inspector’s Field Manual that govern this inquiry, see id. at 1090,
weigh against Calderon-Jimenez, primarily because, as discussed above, he likely
could not have overcome the ground of inadmissibility.
2. The district court did not abuse its discretion in denying Calderon-
Jimenez’s discovery motion for information about which aliens are permitted to
withdraw their applications for admission and how such decisions are made by
border patrol agents, given the broad, general scope of his written motion. See
United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir. 1984). Even assuming that
he narrowed the discovery request at oral argument below—and the record is far
from clear on this point—the denial of discovery was still not an abuse of
discretion. As discussed above, the factors in the Inspector’s Field Manual
comprise the primary framework for determining the plausibility of relief, Barajas-
Alvarado, 655 F.3d at 1089-90, and those factors strongly indicate that relief is
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implausible here regardless of any comparative analysis. See United States v.
Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012).1
3. Even if the district court erred in applying Batson v. Kentucky, 476 U.S.
79 (1986), by failing to “evaluate the persuasiveness of the government’s facially
neutral reason,” United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015),
we nevertheless affirm on de novo review, see id. On appeal, Calderon-Jimenez
invites a comparative juror analysis, e.g., Kesser v. Cambra, 465 F.3d 351 (9th Cir.
2006) (en banc), but this analysis does not establish that the government’s
articulated race-neutral reasons regarding its strike of the only African-American
member of the jury panel were pretextual. Of note, none of the other panel
members had the same constellation of characteristics. See Alvarez-Ulloa, 784
F.3d at 567 (noting that struck juror had combination of factors “making him a
more attractive target for a strike than” another juror).
4. The destruction of surveillance video footage from a camera tower
located near the border did not result in a violation of Calderon-Jimenez’s due
process rights. There was no indication that the video would have established that
1
Calderon-Jimenez’s conclusory argument that the district court’s ruling
resulted in a violation of Brady v. Maryland, 373 U.S. 83 (1963), is belied by the
record, and similarly fails. See Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir.
2012); United States v. Doe, 705 F.3d 1134, 1152 (9th Cir. 2013).
4
he entered the country in 2013 under constant observation constituting “official
restraint.” See United States v. Ramos-Godinez, 273 F.3d 820, 824 (9th Cir. 2001).
For example, both border patrol agents involved in Calderon-Jimenez’s
apprehension testified that they were not directed to his location by any camera
operators. Because the video evidence in question had little bearing on Calderon-
Jimenez’s defense, the government did not act in bad faith. See United States v.
Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013).2
5. The district court did not plainly err in allowing the government to
introduce into evidence a copy of Calderon-Jimenez’s birth certificate obtained
from his Special Agricultural Workers application file.3 We cannot say that the use
of his birth certificate seriously affected the fairness, integrity, or public reputation
of the proceedings, United States v. Chen Chiang Liu, 631 F.3d 993, 999 (9th Cir.
2011), because the government also relied on other evidence—including Calderon-
Jimenez’s own statements to a border patrol agent that he was a Mexican
2
For similar reasons, the lack of a jury instruction on this point—an issue
not raised below—was not plain error. See United States v. Flyer, 633 F.3d 911,
916 (9th Cir. 2011).
3
Plain error review is proper because Calderon-Jimenez did not raise this
ground for excluding the birth certificate below. See United States v. Sims, 617
F.2d 1371, 1376 (9th Cir. 1980).
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citizen—to establish his alienage, and Calderon-Jimenez did not challenge this
issue during opening or closing statements.
6. Finally, the district court did not err in imposing a sentence of seventy
months of imprisonment. Calderon-Jimenez’s argument that a criminal threats
conviction under California Penal Code § 422 was not a crime of violence under §
2L1.2 of the Sentencing Guidelines is squarely foreclosed by United States v.
Villavicenio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010). Further, Calderon-
Jimenez’s reliance on Alleyne v. United States for the proposition that a “finding of
fact [that] alters the legally prescribed punishment so as to aggravate it” must be
alleged in the indictment and submitted to the jury,” 133 S. Ct. 2151, 2162 (2013),
ignores the fact that prior convictions constitute a “narrow exception” to this
general rule, id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998)).
AFFIRMED.
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