United States v. Carlos Lopez-Lopez ( 2012 )

FILED
NOT FOR PUBLICATION APR 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50198
Plaintiff - Appellee, D.C. No. 3:10-cr-01796-WQH-1
v.
MEMORANDUM*
CARLOS ROGELIO LOPEZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted February 16, 2012
Pasadena, California
Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.**
Defendant Carlos Rogelio Lopez-Lopez (“Lopez”) was indicted on charges
of attempted re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b),
and false claim to United States Citizenship, in violation of 18 U.S.C. § 911. A
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.
jury found Lopez guilty on both counts. Lopez appeals his convictions and
sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We
address Lopez’s arguments in turn.
1. Lopez’s collateral attack under 8 U.S.C. § 1326(d) on his prior order of
removal fails because Lopez cannot establish that he had a “plausible ground for
relief from [removal].” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050
(9th Cir. 2004) (internal quotation marks omitted).
Lopez cannot establish that he had a plausible ground for relief from
removal because his 2008 conviction for “receipt of a stolen vehicle,” in violation
of California Penal Code § 496d(a), was categorically an “aggravated felony”
under 8 U.S.C. § 1101(a)(43)(G). See Alvarez-Reynaga v. Holder, 596 F.3d 534,
536-37 (9th Cir. 2010) (holding that alien’s conviction for “receipt of a stolen
vehicle,” in violation of California Penal Code § 496d(a), was categorically an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G)); Verdugo-Gonzalez v. Holder,
581 F.3d 1059, 1062 (9th Cir. 2009) (holding that alien’s conviction for “receipt of
stolen property,” in violation of California Penal Code § 496(a), was categorically
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G)). Because Lopez’s
conviction was categorically an aggravated felony, Lopez was removable under 8
U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and was
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also ineligible for cancellation of removal or voluntary departure. See 8 U.S.C. §§
1229b(a)(3), 1229c(a)(1).
2. Even if the district court erred when it applied a sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(i) for Lopez’s prior conviction under California
Health & Safety Code § 11352(a), any such error was harmless. See United States
v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (“When an ‘alleged error is harmless, it
is not a ground for resentencing.’”) (internal alteration omitted) (quoting United
States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008)). Lopez’s prior conviction
under California Health & Safety Code § 11351 could have justified the
enhancement.
AFFIRMED.
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