United States v. Raul Delacruz-Ulin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 06 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50551
Plaintiff - Appellee, D.C. No. 3:09-cr-04014-MMA
v.
MEMORANDUM*
RAUL DE LA CRUZ-ULIN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted November 9, 2011**
Pasadena, California
Before: FERNANDEZ and TALLMAN, Circuit Judges, and ROSENTHAL,
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 Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
Raul De La Cruz-Ulin (“De La Cruz”) appeals his conviction following a
conditional guilty plea for attempted reentry after deportation, in violation of 8
U.S.C. § 1326. De La Cruz argues that due process violations invalidated the
removal order that was the basis of the § 1326 conviction. The district court
denied the motion to dismiss the § 1326 charge on the basis that, even though there
was a due process violation, De La Cruz suffered no prejudice. Reviewing the
claim de novo, we affirm.
In the deportation proceeding that led to the underlying removal order, De
La Cruz waived his right to counsel and to appeal. Those waivers did not comply
with due process requirements. But the due process violations do not warrant
dismissal of the § 1326 charge because De La Cruz cannot show that he was
prejudiced as a result.
To show prejudice, De La Cruz must show that he had a plausible ground for
relief from the removal order. De La Cruz asserts that he had a plausible ground
for relief in the form of fast-track voluntary departure. 8 U.S.C. § 1229c(a); see
United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir. 2010). The record
shows, however, that De La Cruz was ineligible for such relief because his
conviction for receipt of stolen property under California Penal Code § 496(a)
made him an aggravated felon under 8 U.S.C. § 1101(a)(43)(G) unless he received
a sentence of less than one year. See Verdugo-Gonzalez v. Holder, 581 F.3d 1059,
1061 (9th Cir. 2009). The state-court record does not support a finding that the
California state court imposed a sentence of less than one year.
Under California Penal Code § 654(a), the state court was required to
impose a custodial sentence on both the burglary and the receipt of stolen property
counts of conviction and stay execution of the sentence on the count that provides
for the shorter potential term of imprisonment. See People v. Alford, 103 Cal.
Rptr. 3d 898, 900, 905 (Ct. App. 2010). The record shows that when the state
court revoked De La Cruz’s probation, the court imposed a custodial sentence of
sixteen months for the burglary conviction and stayed the sentence for the receipt
of stolen property conviction in accordance with § 654(a). Because the state court
was required to impose a custodial sentence on both counts, De La Cruz cannot
show that the state court did not sentence him to less than one year for his receipt
of stolen property conviction. See United States v. Gonzalez-Valerio, 342 F.3d
1051, 1056 (9th Cir. 2003) (stating that “[i]n order to demonstrate prejudice,
Gonzalez would also have to show that he is not barred from receiving relief”
(emphasis added), and noting that a defendant does not meet this burden by
pointing to an ambiguity in the underlying criminal sentence). Based on the
record, De La Cruz cannot show prejudice from the due process violations in the
removal hearing because he cannot show eligibility for voluntary deportation.
Because De La Cruz suffered no prejudice as a result of the due process
violations, his removal order was valid. The district court properly denied the
motion to dismiss the § 1326 count of the indictment.
AFFIRMED.