United States v. Braulio Gonzalez-Tejeda

FILED
NOT FOR PUBLICATION APR 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50435
Plaintiff - Appellee, D.C. No. 3:12-cr-02967-WQH-1
v.
MEMORANDUM*
BRAULIO GONZALEZ-TEJEDA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted April 8, 2015**
Pasadena California
Before: SILVERMAN and BEA, Circuit Judges and DONATO,*** District Judge.
*
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).
***
The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
Defendant Braulio Gonzalez-Tejeda appeals the district court’s denial of his
8 U.S.C. § 1326(d) motion to dismiss the indictment. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm the conviction.
The district court did not err when it considered judicially noticeable
conviction documents not admitted at the removal hearing to decide whether the
defendant had a plausible claim for relief from removal, i.e., whether the defendant
was removable as charged for having committed a drug trafficking aggravated
felony. United States v. Bustos-Ochoa, 704 F.3d 1053, 1056-57 (9th Cir. 2012)
(per curiam), amended, 714 F.3d 1133 (9th Cir. 2013). The defendant cannot
prove prejudice because the conviction documents confirm the defendant’s
admission to the immigration judge that the conviction was a drug trafficking
aggravated felony. Id.Because the defendant cannot prove prejudice, in any event, we do not reach
his argument that his administrative appeal waiver was not considered and
intelligent.
AFFIRMED.