United States v. David Escobar-Menjivar , 407 F. App'x 231 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 04 2011
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. 10-10059
Plaintiff - Appellee, D.C. No. 2:09-cr-00017-PMP
v.
MEMORANDUM *
DAVID ANTONIO ESCOBAR-
MENJIVAR,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
David Antonio Escobar-Menjivar appeals from his conviction for being a
deported alien found unlawfully in the United States, in violation of 8 U.S.C.
§ 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on
*
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).
any ground supported by the record. See United States v. Tello, 600 F.3d 1161,
1167 n.6 (9th Cir. 2010). We affirm.
Escobar-Menjivar contends that the district court erred in denying his
motion to dismiss the indictment because the prior removal alleged in the
indictment was the product of a fundamentally unfair deportation proceeding. On
appeal, Escobar-Menjivar argues that he was not adequately advised of possible
eligibility for relief from removal pursuant to 8 U.S.C. § 1229c(a). The contention
fails because Escobar-Menjivar cannot demonstrate prejudice from any alleged due
process violation, as he was previously permitted to voluntarily depart.
See 8 U.S.C. § 1229c(c); see also United States v. Gonzalez-Valerio, 342 F.3d
1051, 1054 (9th Cir. 2003) (holding that district court should have denied motion
to dismiss an 8 U.S.C. § 1326 indictment where the defendant failed to show
prejudice resulting from due process violation
in deportation proceedings).
AFFIRMED.
2 10-10059