United States v. Lua-Bermejo , 421 F. App'x 669 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 14 2011
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. 07-50435
Plaintiff - Appellee, D.C. No. CR-06-02515-TJW
v.
MEMORANDUM *
SERGIO LUA-BERMEJO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Sergio Lua-Bermejo appeals from his conviction for attempted entry after
deportation in violation of 8 U.S.C. § 1326. 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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lua-Bermejo contends that the district court erred when it denied his motion
to dismiss the indictment because the prior removal alleged in the indictment was
the product of a fundamentally unfair deportation proceeding. First, Lua-Bermejo
contends that his appeal waiver was invalid. The record reflects that his waiver
was “considered and intelligent.” United States v. Estrada-Torres, 179 F.3d 776,
781 (9th Cir. 1999) (per curiam), overruled on other grounds by United States v.
Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc).
Second, Lua-Bermejo contends that he was not adequately advised of
possible eligibility for discretionary relief under former section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994). There was no
possibility that Lua-Bermejo was eligible for relief because he did not have the
requisite seven years of unrelinquished domicile. See 8 U.S.C. § 1182(c) (1994);
United States v. Lopez-Velasquez, 629 F.3d 894, 896-901 (9th Cir. 2010) (en
banc). Accordingly, the immigration judge did not have a duty to inform him of
such relief. See Lopez-Velasquez, 629 F.3d at 901.
Finally, Lua-Bermejo contends that his waiver of the right to counsel was
not knowing and voluntary. This contention was not raised in the district court and
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we decline to consider it for the first time on appeal. See Rhoades v. Henry, 598
F.3d 495, 501 & n.7 (9th Cir. 2010).
AFFIRMED.
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