United States v. Rafael Mendoza-Sanchez ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30127
Plaintiff-Appellee, D.C. No.
4:21-cr-06043-SMJ-1
v.
RAFAEL MENDOZA-SANCHEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted July 11, 2023**
Seattle, Washington
Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.
Defendant Rafael Mendoza-Sanchez timely appeals the entry of a criminal
judgment following his conditional guilty plea to one count of violating 8 U.S.C.
§ 1326, for being present in the United States following removal. The district
court rejected Defendant’s § 1326(d) collateral challenge to the underlying
*
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).
removal order and, accordingly, denied his motion to dismiss the indictment.
Reviewing de novo, United States v. Alvarez, 60 F.4th 554, 557 (9th Cir. 2023),
we affirm.
The district court correctly held that Defendant failed to establish that entry
of the removal order was “fundamentally unfair.” 8 U.S.C. § 1326(d)(3). “An
underlying removal order is ‘fundamentally unfair’ if: (1) a defendant’s due
process rights were violated by defects in his underlying deportation proceeding,
and (2) he suffered prejudice as a result of the defects.” United States v. Martinez-
Hernandez, 932 F.3d 1198, 1203 (9th Cir. 2019) (citation and internal quotation
marks omitted). “To demonstrate prejudice, [Defendant] must show that he had
plausible grounds for relief from the removal order.” United States v. Flores, 901
F.3d 1150, 1162 (9th Cir. 2018) (citation and internal quotation marks omitted).
Assuming without deciding that the failure of Defendant’s immigration
lawyer to file a brief in the 2013 appeal violated Defendant’s due process rights,
Defendant failed to establish prejudice. The only form of relief mentioned by
Defendant is cancellation of removal. But to qualify for cancellation of removal,
Defendant must have shown, among other things, continuous residence in the
United States for at least seven years. 8 U.S.C. § 1229b(a)(2). Defendant was
lawfully admitted in 2004. In 2008, Defendant was convicted in state court of
third-degree theft and sentenced to 365 days in prison, a conviction that rendered
2
him removable pursuant to 8 U.S.C. § 1227(a)(2). The 2008 conviction also ended
his period of continuous residence after about four years—far short of the seven-
year requirement. See 8 U.S.C. § 1229b(d)(1) (“For purposes of this section, any
period of continuous residence or continuous physical presence in the United
States shall be deemed to end . . . (B) when the alien has committed an offense
referred to in section 1182(a)(2) of this title that renders the alien . . . removable
from the United States under section 1227(a)(2) . . . of this title.”).1
AFFIRMED.
1
Defendant has neither argued nor introduced evidence that he sought or received
post-conviction relief in state court; nor has he asserted that such relief would
affect the legal analysis here.
3