United States v. Pedro Perez-Godinez

FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50423
Plaintiff - Appellee, D.C. No. 3:08-cr-02582-JAH-1
v.
MEMORANDUM*
PEDRO PEREZ-GODINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted July 15, 2010**
Pasadena, California
Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior 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 Jack J. Camp, Senior United States District Judge for
the Northern District of Georgia, sitting by designation.
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Appellant Pedro Perez-Godinez, a citizen of Mexico, pled guilty to violating
8 U.S.C. § 1326, which makes it illegal for an alien to re-enter the United States
after being deported or removed. He appeals the trial court’s ruling on his motion
to dismiss the indictment in which he collaterally attacks the Final Administrative
Removal Order ordering his removal.
In 2004, a jury convicted Appellant of first degree robbery in concert in
violation of California Penal Code § 212.5/213(a)(1)(A). Appellant also received
an enhancement under California Penal Code § 12022(a)(1) for the use of a firearm
in the commission of the robbery. The state court sentenced Appellant to six years
imprisonment on the robbery count with an additional one-year imprisonment for
the firearm enhancement.
While serving this sentence, a federal agent served Appellant with a Notice
of Intent to Issue a Final Administrative Removal Order. The Notice alleged that
Appellant was subject to deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)
because his California robbery conviction was an aggravated felony. After the
entry of the Removal Order finding Appellant deportable as charged, Appellant
was deported to Mexico.
Shortly after being deported, Appellant was apprehended while attempting
to illegally re-enter the United States, and a Grand Jury charged Appellant with
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violating 8 U.S.C. § 1326. Appellant then filed a motion to dismiss the indictment
collaterally attacking the previous Removal Order as a violation of his rights as
protected by the Due Process Clause of the Fifth Amendment. He contends that
because his prior conviction is not an aggravated felony, he was improperly
subjected to the expedited removal proceedings of 8 U.S.C. § 1228 and, thus,
denied his right to a hearing before an immigration judge.
After a hearing, the trial court denied Appellant’s motion. Appellant then
entered a conditional guilty plea, allowing him to appeal the trial court’s order
denying his motion to dismiss. Appellant timely filed this appeal. We review the
trial court’s denial of the motion to dismiss de novo. United States v. Arias-
Ordonez, 597 F.3d 972, 976 (9th Cir. 2010); United States v. Leon-Paz, 340 F.3d
1003, 1004 (9th Cir. 2003).
A criminal defendant charged pursuant to Section 1326 may collaterally
attack the underlying removal order in a criminal proceeding. United States v.
Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). In order to prevail, the
defendant must demonstrate three elements: "(1) [the defendant] exhausted any
administrative remedies that may have been available to seek relief against the
order; (2) the deportation proceedings at which the order was issued improperly
deprived [the defendant] of the opportunity for judicial review; and (3) the entry of
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the order was fundamentally unfair." 8 U.S.C. § 1326(d); Arias-Ordonez, 597 F.3d
at 976; United States v. Lopez-Velasquez, 568 F.3d 1139, 1142 (9th Cir. 2009). A
removal order is “fundamentally unfair” when the underlying deportation
proceeding violated the defendant’s due process rights, and the defendant suffers
prejudice as a result of the violation. Arias-Ordonez, 597 F.3d at 976.
The pertinent question on appeal is whether appellant was subject to
expedited removal pursuant to 8 U.S.C. § 1228 as an aggravated felon because of
his prior robbery conviction. The trial court did not err in finding that Appellant
was subject to deportation as an aggravated felon based on his California robbery
conviction, which is categorically a crime of violence. See United States v.
McDougherty, 920 F.2d 569, 573 (9th Cir. 1990) (“[R]obbery under California law
is . . . by definition a crime of violence.”) Because Appellant was convicted of a
crime of violence for which the term of imprisonment is at least one year, he was
subject to expedited removal under Section 1228. Therefore, Appellant cannot
sustain a collateral attack on his removal order because he cannot satisfy his
burden of demonstrating that the order was fundamentally unfair. The trial court
properly denied Appellant’s motion to dismiss the indictment.
AFFIRMED.