United States v. Tomas Ramirez-Gonzalez , 574 F. App'x 772 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10329
Plaintiff - Appellee, D.C. No. 5:12-cr-00632-RMW-1
v.
MEMORANDUM*
TOMAS RAMIREZ-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted May 14, 2014
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
Tomas Ramirez-Gonzalez appeals his conviction for illegal reentry under 8
U.S.C. § 1326, collaterally attacking the underlying removal order as a violation of
due process and challenging the validity of his waiver of the right to a trial by jury.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. To successfully attack the underlying deportation order, Ramirez-
Gonzalez must demonstrate that: “(1) [he] 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 alien of the
opportunity for judicial review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d); United States v. Rojas-Pedroza, 716 F.3d 1253, 1262
(9th Cir.), cert. denied, 134 S. Ct. 805 (2013). “An underlying removal order is
‘fundamentally unfair’ if: ‘(1) [a defendant’s] due process rights were violated by
defects in his underlying deportation proceeding, and (2) he suffered prejudice as a
result of the defects.’” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048
(9th Cir. 2004) (alteration in original) (quoting United States v. Zarate-Martinez,
133 F.3d 1194, 1197 (9th Cir. 1998)).
An immigration judge (“IJ”) is required to inform an individual in removal
proceedings of his or her “apparent eligibility” for relief from removal and provide
an opportunity to apply for such relief. 8 C.F.R. § 1240.11(a)(2). An IJ’s failure
to issue such an advisement violates due process. Rojas-Pedroza, 716 F.3d at
1262; United States v. Vidal-Mendoza, 705 F.3d 1012, 1015 (9th Cir. 2013). Here,
however, the IJ did advise Ramirez-Gonzalez that he “may be eligible” for
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voluntary departure and offered him an opportunity to apply. Nothing more was
required. See Rojas-Pedroza, 716 F.3d at 1263.
2. A defendant can waive his right to a trial by jury if the waiver comports
with Federal Rule of Criminal Procedure 23(a), which requires (1) a written
waiver, (2) governmental consent, and (3) court approval. United States v. Duarte-
Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997). Additionally, a valid waiver must
be voluntary, knowing, and intelligent. Id.; United States v. Christensen, 18 F.3d
822, 824 (9th Cir. 1994). Compliance with Rule 23(a) creates a presumption that
the waiver is voluntary, knowing, and intelligent. United States v. Bishop, 291
F.3d 1100, 1113 (9th Cir. 2002); United States v. Cochran, 770 F.2d 850, 851 (9th
Cir. 1985). This presumption ceases to operate only if the record “indicates a
special disadvantage or disability bearing upon the defendant’s understanding of
the jury waiver.” Duarte-Higareda, 113 F.3d at 1003.
Here, Ramirez-Gonzalez’s jury waiver complied with Rule 23. It was in
writing, the government consented to the waiver, and the court accepted the
waiver. Accordingly, the presumption that the waiver was voluntary, knowing,
and intelligent is triggered. Ramirez-Gonzalez does not point to any facts in the
record that would indicate he was unable to understand the waiver. Consequently,
we conclude that his waiver was valid.
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AFFIRMED.
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