United States v. Ivan Vidal-Castillo ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50059
Plaintiff-Appellee, D.C. No. 5:17-cr-00113-PA-1
v.
MEMORANDUM*
IVAN DE JESUS VIDAL-CASTILLO,
AKA Angel Garcia, AKA Cedric Guzman,
AKA Jorge Valenzuela, AKA Juan Jesus
Vidal,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted May 17, 2019
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.
Ivan Vidal Castillo appeals his conviction and sentence for illegal reentry in
violation of 8 U.S.C. § 1326. Vidal contends that the district court 1) erroneously
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
concluded in denying his motion to dismiss the information that his underlying
deportation was not fundamentally unfair and 2) erroneously applied a sentencing
enhancement based on prior convictions that were originally felonies but since
reduced to misdemeanors. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court properly concluded that Vidal’s due process rights
were not violated in his 2006 immigration proceedings in denying his motion to
dismiss the information. Because the Immigration Judge (IJ) “adequately
explain[ed] the hearing procedures to [Vidal], including what he must prove to
establish his basis for relief,” Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir. 2002),
Vidal’s due process rights were not violated. As the district court correctly found,
the IJ “explained voluntary departure to the defendant, gave the defendant an
opportunity to present evidence, questioned the defendant and his mother, asked
the defendant why he should receive voluntary departure, and allowed the
defendant to produce any evidence he thought would be helpful.” We need not
reach the question of whether the IJ erred in concluding that Vidal was ineligible
for voluntary departure, because the IJ, in the alternative, considered voluntary
departure on the merits and denied it as a matter of discretion.
2. The district court did not err in applying a sentencing enhancement
under U.S.S.G. § 2L1.2(b)(3). Although Vidal’s two post-deportation convictions
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at issue were reduced to misdemeanors pursuant to subsequent California state law,
that did not alter the fact that Vidal was convicted of the felonies “at any time after
the defendant was ordered deported or ordered removed from the United States for
the first time.” U.S.S.G. 2L1.2(b)(3) (2016). See United States v. Diaz, 838 F.3d
968, 972–74 (9th Cir. 2016) (affirming a sentence enhancement pursuant to 21
U.S.C. § 841); United States v. Salazar-Mojica, 634 F.3d 1070, 1072–74 (9th Cir.
2011) (affirming a sentence enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii)).
AFFIRMED.
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