United States v. Jorge Farias , 502 F. App'x 682 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50385
Plaintiff - Appellee, D.C. No. 3:08-cr-03679-H-1
v.
MEMORANDUM *
JORGE FARIAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted December 3, 2012
Pasadena, California
Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.
Jorge Farias appeals his judgment of conviction for attempted reentry into
the United States, after a prior deportation, in violation of 8 U.S.C. §1326. We
have jurisdiction under 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.
The district court found that Farias was incompetent to stand trial and then
committed him for treatment without first holding a competency hearing. We
assume, without deciding, that under 18 U.S.C. § 4241(a), a court is required to
conduct a competency hearing before it finds that a defendant is incompetent and
commits him for restoration to competency. See United States v. White, 887 F.2d
705, 710 (6th Cir. 1989).
Even assuming the district court erred by not conducting a competency
hearing before committing Farias, Farias’ conviction is affirmed. The error in no
way prejudiced Farias’ subsequent prosecution for illegal reentry, and there is no
remedy on direct appeal for this statutory violation, see United States v.
Magassouba, 544 F.3d 387, 411 & n.16 (2d Cir. 2008), given that Farias was not
convicted while adjudicated incompetent.
Farias’s collateral attack on his underlying deportation, under 8 U.S.C.
§ 1326(d), also fails because his due process rights were not violated. Although he
claims he did not receive notice of his 1998 deportation hearing, there is no dispute
that his attorney received notice, which is sufficient to satisfy due process. Popa
v. Holder, 571 F.3d 890, 897 (9th Cir. 2009); Garcia v. INS, 222 F.3d 1208, 1209
(9th Cir. 2000).
AFFIRMED.
2