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United States v. Elizardo Luna-Magdaleno ( 2013 )


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  •                                                                               FILED
NOT FOR PUBLICATION                                OCT 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No. 12-50430
Plaintiff - Appellee,              D.C. No. 3:11-cr-03086-MMA-1
v.                                             AMENDED
MEMORANDUM*
ELIZARDO LUNA-MAGDALENO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted July 9, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Elizardo Luna-Magdaleno appeals from his conviction and sentence for
attempted entry after deportation in violation of 8 U.S.C. § 1326.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Luna-Magdaleno first contends that the district court erred in denying his
motion to dismiss the indictment, in which he challenged the validity of all three
removal orders on which the government relied. Only one valid removal order is
necessary to sustain the conviction, and we conclude that the 2005 removal order is
valid. Luna-Magdaleno does not contest that he was properly deemed removable
in 2005 because he had made a false claim of United States citizenship. See 8
U.S.C. § 1182(a)(6)(C)(ii). He argues only that the removal order was
fundamentally unfair because the immigration judge failed to advise him of various
forms of relief from removal. However, he concedes that, of the four forms of
relief he initially identified, he was not actually eligible for voluntary departure or
cancellation of removal for certain nonpermanent residents. Luna-Magdaleno was
also ineligible for cancellation of removal nunc pro tunc because, under then-
existing law, his 1998 and 2000 burglary convictions were aggravated felonies.
See 8 U.S.C. § 1229b(a)(3); United States v. Velasco-Medina,
    305 F.3d 839
    ,
852–53 (9th Cir. 2002). Finally, even assuming that the immigration judge should
have informed him that he could ask to withdraw his application for admission, no
prejudice resulted because it is implausible that he would have been granted this
relief in light of his fraudulent attempt to gain entry. See United States v. Barajas-
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Alvarado,
    655 F.3d 1077
    , 1089 (9th Cir. 2011), cert. denied,
    132 S. Ct. 1983 
    (2012).
2. Luna-Magdaleno next contends that the district court erred by increasing
his offense level because the court incorrectly determined that he had been
previously removed after a conviction for an aggravated felony. Luna-Magdaleno
was convicted in 2002 of petty theft with a prior conviction under California Penal
Code sections 484 and 666. Following the modified categorical analysis we
applied in United States v. Rivera,
    658 F.3d 1073
    , 1077–78 (9th Cir. 2011), Luna-
Magdaleno’s offense falls within the definition of the generic theft offense because
the conviction documents reflect that he pleaded guilty only to the “steal, take,
[and] carry . . . away” prong of the statute. Cal. Penal Code § 484(a). The
outcome in Rivera is unaffected by the Supreme Court’s recent decision in
Descamps v. United States,
    133 S. Ct. 2276 
    (2013), because § 484(a) is divisible.
Luna-Magdaleno, like the defendant in Rivera, pleaded guilty only to the larceny
provision of § 484(a); thus there is no doubt that the state crime matched the
elements of the federal generic crime.
3. Finally, Luna-Magdaleno argues that the district court erred in applying 8
U.S.C. § 1326(b) to impose a sentence that exceeds the two-year maximum
provided for in § 1326(a). He acknowledges that § 1326(b) has been construed as
3
a penalty provision, rather than a separate crime, and that the district court was
therefore authorized to apply the prior-conviction enhancement under existing
precedent. See Almendarez-Torres v. United States,
    523 U.S. 224
    , 226 (1998). We
have already considered and rejected Luna-Magdaleno’s argument that subsequent
cases have overruled Almendarez-Torres. See United States v. Ruiz-Apolonio,
    657 F.3d 907
    , 920–21 & n.11 (9th Cir. 2011), cert. denied,
    132 S. Ct. 1614 
    (2012);
United States v. Valdovinos-Mendez,
    641 F.3d 1031
    , 1036 (9th Cir. 2011).
AFFIRMED.
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