United States v. Edwin Lopes-Orellana

FILED
NOT FOR PUBLICATION MAR 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50422
Plaintiff - Appellee, D.C. No. 3:14-cr-00081-CAB-1
v.
MEMORANDUM*
EDWIN RUBEN LOPES-ORELLANA,
Oriana Elquin, AKA Ewin Ruben Lopes-
Orellana, AKA Erwin Lopez,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted December 7, 2015
Pasadena, California
Before: REINHARDT, NOONAN, and NGUYEN, Circuit Judges.
Edwin Ruben Lopes-Orellana (“Lopes”) appeals his conviction for unlawful
reentry under 8 U.S.C. § 1326(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Lopes first argues that the district court erred in denying his motion to
dismiss the indictment. He argues that the deportation orders upon which the
government relied to satisfy an element of § 1326(a) are invalid because, Lopes
contends, his prior conviction under Utah Criminal Code § 58-37-8(1)(a)(ii) is not
an aggravated felony drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B) and
Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014). Lopes was removed
administratively in 2007, 2008, 2010, and 2013. We need not consider whether the
2007, 2010, and 2013 removal orders (all of which relied on Lopes’s commission
of an aggravated felony) are valid, however, because the 2008 removal order
(which did not rely on his commission of an aggravated felony) is valid and
therefore sufficient to sustain a § 1326(a) conviction.
Lopes argues that the 2008 removal order is invalid because the immigration
judge failed to inform Lopes about the possibility of voluntary departure.
However, an “IJ’s duty is limited to informing an alien of a reasonable possibility
that the alien is eligible for relief at the time of the hearing.” United States v.
Vidal-Mendoza, 705 F.3d 1012, 1016 (9th Cir. 2013) (internal quotation marks
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omitted).1 Under our precedent in 2008, Lopes’s conviction under Utah Criminal
Code § 58-37-8(1)(a)(ii) did qualify as an aggravated felony, as courts at the time
were permitted to “look to the record of conviction” when confronted with a state
statute that listed more controlled substances than the federal schedules. Ruiz-
Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007). The relevant records here
unambiguously establish that Lopes’s conviction involved cocaine (a drug that
does appear on the federal schedules). Accordingly, in 2008, Lopes was ineligible
for voluntary departure, and the IJ had no duty to inform him of that form of relief.
We therefore affirm the district court’s denial of Lopes’s motion to dismiss the
indictment.
2. Lopes also argues that the government’s introduction at trial of evidence
of Lopes’s four prior removals was substantially more prejudicial than probative
under Federal Rule of Evidence 403. Admission of evidence of “multiple” prior
removals does not violate Rule 403, however, because courts often permit “the
1
We recognize that the government raised this argument based on Vidal-
Mendoza for the first time at oral argument. Although the argument would
ordinarily be waived, we may address an issue raised for the first time at oral
argument “when the issue presented is purely one of law and . . . does not depend
on the factual record developed below.” Ruiz v. Affinity Logistics Corp., 667 F.3d
1318, 1322 (9th Cir. 2012). Because the argument based on Vidal-Mendoza
satisfies this exception, we exercise our discretion to reach the argument. To do
otherwise would force us to ignore binding circuit precedent that clearly controls
the outcome of Lopes’s motion to dismiss the indictment.
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introduction of more than one predicate act to establish an element of the crime.”
United States v. Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir. 2007); see also United
States v. Martinez-Rodriguez, 472 F.3d 1087, 1091-92 (9th Cir. 2006).
AFFIRMED.
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