United States v. Rafael Villagomez-Troche ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10540
Plaintiff-Appellee, D.C. No.
2:17-cr-00836-SPL-1
v. District of Arizona,
Phoenix
RAFAEL VILLAGOMEZ-TROCHE, AKA
Robert Villagomez Troche, AKA Rafael MEMORANDUM*
Villagomez-Troche, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding
Submitted May 9, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and ROBRENO,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
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Rafael Villagomez-Troche, a native and citizen of Mexico, appeals from the
district court’s order denying his motion to dismiss his indictment under 8 U.S.C.
§ 1326(d). We affirm.
1. To prevail on his motion to dismiss the indictment, Villagomez-Troche
was required to prove that entry of the underlying removal order was
“fundamentally unfair.” United States v. Palomar-Santiago, 141 S. Ct. 1615,
1620–21 (2021) (quoting 8 U.S.C. § 1326(d)). A removal order is fundamentally
unfair if the non-citizen’s due process rights were violated by defects in the
removal proceeding and he suffered prejudice as a result. United States v.
Aguilera-Rios, 769 F.3d 626, 630 (9th Cir. 2014). Villagomez-Troche argues that
he was not removable as charged because the government could not prove by clear
and convincing evidence that he had been convicted of “a violation of . . . any law
. . . relating to a controlled substance (as defined in section 802 of title 21).” 8
U.S.C. § 1182(a)(2)(A)(i)(II).
Clear and convincing evidence establishes that Villagomez-Troche was in
fact convicted of a violation of Illinois state law related to cannabis, a qualifying
controlled substance under 21 U.S.C. § 802. Although there is some variation
among different state-court documents as to the precise crime to which
Villagomez-Troche ultimately pleaded guilty, nothing indicates that the substance
he admitted possessing was anything other than cannabis. Villagomez-Troche
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emphasizes the prosecutor’s statement during his first change of plea hearing that
if, after lab testing, the substance “turns out not to be cannabis we would . . . vacate
the plea.” Although that first plea was indeed vacated, a second guilty plea was
immediately entered in its place without any comment to indicate that the
substance was found not to be cannabis. Indeed, the state court docket entry
indicates he pleaded guilty to “UNLAWFUL POSSESSION OF CANNABIS.”
Moreover, Villagomez-Troche—with the assistance of counsel—admitted all the
factual allegations in the Notice to Appear, which specifically alleged that he was
convicted of unlawful possession with the intent to deliver cannabis. On this
record, the government carried its burden of proving by clear and convincing
evidence that Villagomez-Troche was convicted of unlawful possession of
cannabis.
Because Villagomez-Troche’s underlying removal order was not
fundamentally unfair, we need not address whether he exhausted his administrative
remedies or was improperly deprived of the opportunity for judicial review. See
Palomar-Santiago, 141 S. Ct. at 1620–21.
2. On appeal, Villagomez-Troche preserved the argument that his Notice to
Appear did not confer jurisdiction on the immigration court because it did not
specify the date and time of his removal hearing. As an en banc panel of this court
recently held, however, such defects do not deprive the immigration court of
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jurisdiction. United States v. Bastide-Hernandez, No. 19-30006, slip op. at 5 (9th
Cir. July 11, 2022).
AFFIRMED.