United States v. Edgar Quintana-ramos

FILED
NOT FOR PUBLICATION APR 13 2010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. 09-50496
Plaintiff - Appellee, D.C. No. 2:09-cr-00250-GAF-1
v.
*
MEMORANDUM
EDGAR SANTIAGO QUINTANA-
RAMOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted April 6, 2010
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and GERTNER, **
District Judge.
Appellant Edgar Santiago Quintana-Ramos (“Quintana”) was convicted of
illegal reentry by a deported alien, in violation of 8 U.S.C. § 1326. He now
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
appeals the district court’s denial of his motion to dismiss the indictment and
challenges his above-guidelines sentence of 24 months. We affirm.
The Department of Homeland Security deported Quintana in late October
2007 after he pled guilty in state court to willful neglect of a child resulting in
injury. See Cal. Penal Code § 273a(a). Quintana’s infant stepson had been found
dead in Quintana’s apartment with vomit in his mouth and bruises on his lips. At
the removal hearing, the Immigration Judge (“IJ”) declined to grant Quintana
voluntary departure, a form of relief from deportation that would have precluded a
later illegal reentry charge. In March 2009, law enforcement officials found the
appellant in Riverside, California, and a federal grand jury indicted him shortly
thereafter.
Quintana seeks to collaterally attack the IJ’s removal order based on an
alleged due process violation in his deportation proceeding. He contends that the
IJ employed a per se rule against voluntary departure for aliens with criminal
records. We conclude that the IJ did not apply a categorical policy, and do not
reach the issue of whether such a policy would constitute a due process violation.
At the deportation hearing, the IJ explained that his decision to deny
voluntary departure was “because of” Quintana’s “conviction for cruelty to a
child.” He asked Quintana about the circumstances of the conviction, including the
-2-
time served in custody and the age of the child. The IJ thus considered the nature
of Quintana’s criminal record in deciding whether to grant relief.
Since the IJ properly exercised discretion, there was no due process
violation. See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). As
a result, Quintana’s removal order was not “fundamentally unfair,” United States v.
Lopez-Velasquez, 568 F.3d 1139, 1142 (9th Cir. 2009), and we hold that the
district court correctly denied Quintana’s motion to dismiss on this ground.
Next, Quintana argues that the district court did not explain the extent of its
deviation from the guidelines and that the ultimate sentence was substantively
unreasonable. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008).
The district court sentenced Quintana to 24 months imprisonment, 8 months above
the top of the guidelines range. The court indicated that it departed from the
guidelines based on the probation officer’s suggestion that Quintana’s child cruelty
conviction was significantly more serious than various crimes that would have
resulted in an additional four-point enhancement. The court also explicitly
considered the living conditions at Quintana’s former home and the severe injuries
suffered by his stepson. Finally, the court rejected the government’s suggestion to
take into account an uncharged murder of Quintana’s former wife, and contrasted
Quintana’s 24-month sentence with the government’s recommendation of at least
-3-
46 months.
Given the district court’s discussion of these factors, it adequately explained
Quintana’s sentence. Moreover, in light of the evidence of Quintana’s prior child
abuse and neglect, the ultimate sentence imposed was reasonable.
AFFIRMED.
-4-