Opinion
No. 11-50198
04-04-2012
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS ROGELIO LOPEZ-LOPEZ, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:10-cr-01796-WQH-1
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted February 16, 2012
Pasadena, California
Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.
The Honorable Robert W. Pratt, District Judge for the U.S. District Court for Southern Iowa, sitting by designation.
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Defendant Carlos Rogelio Lopez-Lopez ("Lopez") was indicted on charges of attempted re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b), and false claim to United States Citizenship, in violation of 18 U.S.C. § 911. A jury found Lopez guilty on both counts. Lopez appeals his convictions and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We address Lopez's arguments in turn.
1. Lopez's collateral attack under 8 U.S.C. § 1326(d) on his prior order of removal fails because Lopez cannot establish that he had a "plausible ground for relief from [removal]." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (internal quotation marks omitted).
Lopez cannot establish that he had a plausible ground for relief from removal because his 2008 conviction for "receipt of a stolen vehicle," in violation of California Penal Code § 496d(a), was categorically an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G). See Alvarez-Reynaga v. Holder, 596 F.3d 534, 536-37 (9th Cir. 2010) (holding that alien's conviction for "receipt of a stolen vehicle," in violation of California Penal Code § 496d(a), was categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)); Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir. 2009) (holding that alien's conviction for "receipt of stolen property," in violation of California Penal Code § 496(a), was categorically an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G)). Because Lopez's conviction was categorically an aggravated felony, Lopez was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and was also ineligible for cancellation of removal or voluntary departure. See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1).
2. Even if the district court erred when it applied a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for Lopez's prior conviction under California Health & Safety Code § 11352(a), any such error was harmless. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) ("When an 'alleged error is harmless, it is not a ground for resentencing.'") (internal alteration omitted) (quoting United States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008)). Lopez's prior conviction under California Health & Safety Code § 11351 could have justified the enhancement.
AFFIRMED.