From Casetext: Smarter Legal Research

U.S. v. Lopez-Garcia

United States Court of Appeals, Ninth Circuit
Sep 1, 2011
449 F. App'x 587 (9th Cir. 2011)

Summary

reaching the same conclusion

Summary of this case from United States v. Espinoza

Opinion

No. 10-50054 D.C. No. 3:09-cr-01118-WQH-1

09-01-2011

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ISMAEL LOPEZ-GARCIA, Defendant - Appellant.


NOT FOR PUBLICATION


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.


Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding


Argued and Submitted July 15, 2011

Pasadena, California

Before: RYMER, TALLMAN, and IKUTA, Circuit Judges.

Ismael Lopez-Garcia, a native and citizen of Mexico, appeals his conviction for being a removed alien found within the United States in violation of 8 U.S.C. § 1326. He argues that the removal order underlying his conviction was invalid. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because Lopez-Garcia claimed that the proceeding that resulted in his prior expedited removal order was "fundamentally unfair," he is entitled to "some meaningful review" of the proceeding before the order can be used to establish conclusively an element of his criminal offense. United States v. Barajas-Alvarado, No. 10-50134, --- F.3d ----, 2011 WL 3689244, at *7-8 (9th Cir. Aug. 24, 2011); see also United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). But even assuming defects in that proceeding violated his due process rights, Lopez-Garcia fails to "make a 'plausible' showing that the facts presented would cause the Attorney General to exercise discretion in his favor," United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998), and permit him to withdraw his application for admission, 8 U.S.C. § 1225(a)(4), where he deliberately presented false documents to inspection officers in an effort to gain admission to the United States, was neither a youth nor elderly, did not allege he was in poor health, and had not shown any humanitarian or public interest considerations weighing in his favor. See Barajas-Alvarado, 2011 WL 3689244, at * 10—11. Because Lopez-Garcia has not shown prejudice, the proceeding resulting in the predicate expedited removal order was not fundamentally unfair, and the order could be used as a predicate to the § 1326 prosecution. Id. at 11.

AFFIRMED.


Summaries of

U.S. v. Lopez-Garcia

United States Court of Appeals, Ninth Circuit
Sep 1, 2011
449 F. App'x 587 (9th Cir. 2011)

reaching the same conclusion

Summary of this case from United States v. Espinoza
Case details for

U.S. v. Lopez-Garcia

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ISMAEL LOPEZ-GARCIA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Sep 1, 2011

Citations

449 F. App'x 587 (9th Cir. 2011)

Citing Cases

United States v. Minero-Rojas

In addition, Defendant had been previously removed, was not a youth or elderly, did not have poor health, and…

United States v. Espinoza

iz. Sept. 27, 2010), report and recommendation adopted , 2010 WL 5093938 (D. Ariz. Dec. 8, 2010) ("Because…