* 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 Lee H. Rosenthal, United States District Judge for the

Southern District of Texas, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

RAUL DE LA CRUZ-ULIN,

 Defendant - Appellant.

No. 10-50551

D.C. No. 3:09-cr-04014-MMA

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Submitted November 9, 2011** 

Pasadena, California

Before: FERNANDEZ and TALLMAN, Circuit Judges, and ROSENTHAL,

District Judge.*** 

FILED

DEC 06 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Raul De La Cruz-Ulin (“De La Cruz”) appeals his conviction following a

conditional guilty plea for attempted reentry after deportation, in violation of 8

U.S.C. § 1326. De La Cruz argues that due process violations invalidated the

removal order that was the basis of the § 1326 conviction. The district court

denied the motion to dismiss the § 1326 charge on the basis that, even though there

was a due process violation, De La Cruz suffered no prejudice. Reviewing the

claim de novo, we affirm.

In the deportation proceeding that led to the underlying removal order, De

La Cruz waived his right to counsel and to appeal. Those waivers did not comply

with due process requirements. But the due process violations do not warrant

dismissal of the § 1326 charge because De La Cruz cannot show that he was

prejudiced as a result. 

To show prejudice, De La Cruz must show that he had a plausible ground for

relief from the removal order. De La Cruz asserts that he had a plausible ground

for relief in the form of fast-track voluntary departure. 8 U.S.C. § 1229c(a); see

United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir. 2010). The record

shows, however, that De La Cruz was ineligible for such relief because his

conviction for receipt of stolen property under California Penal Code § 496(a)

made him an aggravated felon under 8 U.S.C. § 1101(a)(43)(G) unless he received

a sentence of less than one year. See Verdugo-Gonzalez v. Holder, 581 F.3d 1059,
1061 (9th Cir. 2009). The state-court record does not support a finding that the

California state court imposed a sentence of less than one year. 

Under California Penal Code § 654(a), the state court was required to

impose a custodial sentence on both the burglary and the receipt of stolen property

counts of conviction and stay execution of the sentence on the count that provides

for the shorter potential term of imprisonment. See People v. Alford, 103 Cal.

Rptr. 3d 898, 900, 905 (Ct. App. 2010). The record shows that when the state

court revoked De La Cruz’s probation, the court imposed a custodial sentence of

sixteen months for the burglary conviction and stayed the sentence for the receipt

of stolen property conviction in accordance with § 654(a). Because the state court

was required to impose a custodial sentence on both counts, De La Cruz cannot

show that the state court did not sentence him to less than one year for his receipt

of stolen property conviction. See United States v. Gonzalez-Valerio, 342 F.3d

1051, 1056 (9th Cir. 2003) (stating that “[i]n order to demonstrate prejudice,

Gonzalez would also have to show that he is not barred from receiving relief”

(emphasis added), and noting that a defendant does not meet this burden by

pointing to an ambiguity in the underlying criminal sentence). Based on the

record, De La Cruz cannot show prejudice from the due process violations in the

removal hearing because he cannot show eligibility for voluntary deportation.
Because De La Cruz suffered no prejudice as a result of the due process

violations, his removal order was valid. The district court properly denied the

motion to dismiss the § 1326 count of the indictment. 

AFFIRMED.