United States v. Carlos Vega ( 2015 )

FILED
NOT FOR PUBLICATION APR 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10552
Plaintiff - Appellee, D.C. No. 3:12-cr-00440-CRB-1
v.
MEMORANDUM*
CARLOS FRANCO VEGA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Argued and Submitted November 19, 2014
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.
Carlos Franco Vega appeals: (1) the district court’s order denying his motion
to dismiss a charge of illegal reentry after deportation in violation of 8 U.S.C.
§ 1326; (2) the district court’s conclusion that his prior drug conviction triggered a
16-level sentence enhancement; and (3) the district court’s denial of his request for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a sentence reduction for acceptance of responsibility. We have jurisdiction under
28 U.S.C. § 1291, and we affirm the district court’s order.1
1. “We review de novo the district court’s denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 when the motion is based on an alleged
deprivation of due process in the underlying removal proceedings[.]” United
States v. Hernandez-Arias, 757 F.3d 874, 879 (9th Cir. 2014) (internal quotation
marks omitted). The district court did not err by denying Vega’s motion to dismiss
his illegal reentry indictment. Vega concedes in his reply brief that Coronado v.
Holder, 759 F.3d 977 (9th Cir. 2014), forecloses his argument that he was not
removable as charged. See United States v. Torre-Jimenez, 771 F.3d 1163, 1167
(9th Cir. 2014).
Vega’s alternative argument challenging his conviction for unlawful reentry
is that the government failed to meet its burden of proof. Vega’s suggestion that
immigration officials would have terminated his expedited immigration
proceedings, rather than gather documentation establishing the nature of his
underlying conviction, is speculative. See United States v. Bustos-Ochoa, 704 F.3d
1053, 1056–57 (9th Cir. 2012).
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The parties are familiar with the facts, so we do not recount them here.
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2. “We generally review arguments not raised before the district court for plain
error,” United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009),
and Vega concedes that he did not object to the application of the 16-level
enhancement in the district court. The district court did not err by determining that
Vega’s § 11351 conviction qualifies as a drug trafficking offense supporting a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Vega concedes that his
argument to the contrary depended on his contention that § 11351 was indivisible.
Torre-Jimenez foreclosed that argument. 771 F.3d at 1167.
3. Whether a defendant accepted responsibility is a factual determination
reviewed for clear error. United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir.
2010). The district court did not impermissibly apply a per se bar to downward
adjustment based on Vega’s assertion of his right to a jury trial. See United States
v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir. 2013). Vega argued he was not
guilty because the government failed to prove the elements of the crime. The court
reasoned that “[Vega] argued he was not guilty. And [Vega] argued that a juror
should find – one or more should find him not guilty. And that to me is
inconsistent with acceptance of responsibility . . . .” Indeed, in his closing
argument, defense counsel argued that the jury “should have reasonable doubt if
[Vega] was physically removed and then returned” to the United States. Defense
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counsel also argued the government “brought [the jury] no evidence of . . . the
actus reus of this case. . . . The thing they allege he did, they brought you nothing
about that.” Unlike cases where a defendant proceeds to trial to contest
jurisdiction, see, e.g., United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002)
(contesting jurisdiction), here the district court properly determined that Vega
sought acquittal on the merits. Under these circumstances, the district court did not
err by ruling that Vega’s defense was inconsistent with acceptance of
responsibility.
AFFIRMED.
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