United States v. Alberto Lara , 384 F. App'x 631 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 18 2010
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. 09-50032
Plaintiff - Appellee, D.C. No. 3:08-CR-00443-WQH-1
v.
MEMORANDUM *
ALBERTO JACOBO LARA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted September 2, 2009 **
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Alberto Jacobo Lara appeals his conviction under 8 U.S.C. § 1326 for
unlawful reentry after removal and his 57-month sentence imposed under 8 U.S.C.
§ 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lara challenges his conviction, arguing the underlying removal order was
invalid because he was not informed at the time of the possibility of a discretionary
waiver of removal under 8 U.S.C. § 1182(h). We reject that argument. Lara failed
to demonstrate prejudice regardless of whether the immigration judge incorrectly
failed to inform Lara of the right to seek a § 1182(h) waiver. See United States v.
Arce-Hernandez, 163 F.3d 559, 563–64 (9th Cir. 1998) (noting defendant must
show prejudice by “tender[ing] a plausible case that he is eligible for a waiver”).
Lara failed to demonstrate prejudice because he made no plausible showing that his
U.S. citizen family would suffer extreme hardship as required for a waiver. See 8
U.S.C. § 1182(h) (requiring “extreme hardship to the United States citizen or
lawfully resident spouse, parent, son, or daughter of [the] alien”); Arce-Hernandez,
163 F.3d at 564 (“[A § 1182(h)] waiver will be granted only when there is ‘great
actual or prospective injury’ or ‘extreme impact’ on the citizen family member,
beyond the ‘common results of deportation.’”).
Lara only made the bare allegation in his declaration that “with respect to
my immigration case, I am and have been married to my wife, Pamela Lara, for 20
years, since 1988.” This fails completely to demonstrate plausible extreme
hardship under our precedent. See id. (holding that alien failed to show extreme
hardship even though his U.S. citizen wife suffered from poor health). Unlike
2
United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000), where “the defendant had
thoroughly documented the many ways in which his support and presence in the
United States were valuable to various family members in non-economic terms,”
United States v. Muro-Inclan, 249 F.3d 1180, 1185–86 (9th Cir. 2001) (discussing
Arrieta), Lara did not point to any hardship whatsoever in his declaration. His
collateral attack on his underlying deportation therefore fails.1
Lara also challenges his sentence imposed under § 1326(b)(2) because the
indictment failed to allege his prior aggravated felony and the government failed to
prove its existence beyond a reasonable doubt. The Supreme Court has held,
however, that Congress intended § 1326(b)(2) to be a sentencing factor to be
determined by the judge rather than a separate crime to be alleged and proved to a
jury. Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998). The
Court also rejected the defendant’s contention that such an interpretation of
§ 1326(b)(2) violates the Constitution reasoning that the Constitution does not
require recidivism to be treated as an element of the offense. Id. at 247.
1
Lara also states that the immigration judge failed to inform him of the right
to adjust his status under 8 U.S.C. § 1255(a). However, this argument does not
make sense as Lara had already adjusted his status to a lawful permanent resident
under § 1255(a) in 1990. Lara also argues that his Sixth Amendment right to
counsel was violated due to ineffective assistance of counsel. This argument is
also foreclosed because, as discussed, Lara suffered no prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
3
Although Almendarez-Torres only addressed the constitutional question
whether recidivism increasing the maximum penalty of a crime must be charged in
the indictment, Jones v. United States, 526 U.S. 227, 248 (1999), the Supreme
Court has strongly implied that Almendarez-Torres also applies to the
constitutional rights of a jury trial and proof beyond a reasonable doubt. See, e.g.,
Blakely v. Washington, 542 U.S. 296, 301 (2004) (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” (emphasis added)). And we have squarely rejected Lara’s constitutional
arguments previously. See United States v. Garcia-Cardenas, 555 F.3d 1049,
1051 (9th Cir. 2009) (“[The defendant] argues that we should limit Almendarez-
Torres to its facts under the doctrine of constitutional doubt; that Almendarez-
Torres has been overruled; and that § 1326(b) is unconstitutional. We have
repeatedly rejected these arguments. . . . Moreover, the Supreme Court continues to
treat Almendarez-Torres as binding precedent.”).
Lara’s collateral attack fails because he cannot make a plausible showing of
extreme hardship to his U.S. citizen family, and Supreme Court and Ninth Circuit
precedent foreclose the challenge to his sentence.
AFFIRMED.
4