United States v. Adrian Pena-Robles ( 2012 )

  •                                                                            FILED
                                NOT FOR PUBLICATION                             MAY 09 2012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. 10-50440
                   Plaintiff - Appellee,             D.C. No. 3:10-cr-00033-LAB-1
                                                     MEMORANDUM *
                   Defendant - Appellant.
                        Appeal from the United States District Court
                          for the Southern District of California
                         Larry A. Burns, District Judge, Presiding
                     Argued December 6, 2011 Submitted May 7, 2012
                                 Pasadena, California
    Before:        PREGERSON and MURGUIA, Circuit Judges, and CONLON,
                   District Judge.**
           Adrian Pena-Robles appeals his conviction and 36-month sentence for
    attempted entry into the United States after deportation. 8 U.S.C. § 1326(a), (b).
    He argues the district court erred in denying his motion to dismiss the § 1326
                 This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
                The Honorable Suzanne B. Conlon, United States District Judge for
    the Northern District of Illinois, sitting by designation.
    indictment on grounds that his previous removal order was the result of an
    expedited removal proceeding that violated his right to due process. Specifically,
    he contends that he did not validly waive his right to an attorney in connection with
    the removal proceedings. He claims prejudice because an attorney could have
    challenged whether the state attempted murder conviction underlying his expedited
    removal was an aggravated felony. In addition, Pena-Robles challenges his
    sentence. We deferred submission of the case pending resolution of United States
    v. Borbon, No. 10-50272, United States v. Contreras-Lopez, No. 10-50238, and
    United States v. Reyes-Bonilla, No. 10-50361. These cases have now been
          We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
    district court’s denial of the motion to dismiss the indictment. United States v.
    364 F.3d 1042
    , 1047 (9th Cir. 2004). We review de novo
    whether a prior conviction is a “crime of violence” under U.S.S.G. § 2L1.2.
    United States v. Bolanos-Hernandez, 
    492 F.3d 1140
    , 1141 (9th Cir. 2007).
          Pena-Robles may collaterally attack the validity of the underlying removal
    order because a prior removal is an element of the § 1326 offense. 8 U.S.C.
    § 1326(d); United States v. Mendoza-Lopez, 
    481 U.S. 828
    , 837–38 (1987). To
    collaterally attack his previous removal order, Pena-Robles must establish that he
                                              2                                    10-50440
    was actually prejudiced by the denial of counsel. United States v. Reyes-Bonilla,
    671 F.3d 1036
    , 1049 (9th Cir. 2012) (to establish the “fundamental unfairness”
    required for a collateral attack under § 1326(d), actual prejudice must be shown).
          We assume, without deciding, that Pena-Robles has established a due
    process violation for purposes of this appeal. However, no actual prejudice
    occurred because he cannot show plausible grounds on which relief from removal
    could have been granted. See Reyes-Bonilla, 671 F.3d at 1049. The district court
    correctly concluded that Pena-Robles’ attempted murder state conviction is an
    aggravated felony. 8 U.S.C. § 1101(a)(43)(F), (U). Oregon’s murder statute falls
    under § 1101(a)(43)(F) as a crime of violence because it presents a substantial risk
    that physical force against a person will be used while committing the offense. 18
    U.S.C. § 16(b) (defining crime of violence); Leocal v. Ashcroft, 
    543 U.S. 1
    382–83 & n.7 (2004). Although there may be ways in which a death is caused
    without the use of force, in the typical case, force is involved. The Oregon attempt
    statute, ORS § 161.405, falls under § 1101(a)(43)(U) because it is coextensive with
    the generic attempt offense. See United States v. Sarbia, 
    367 F.3d 1079
    , 1086 (9th
    Cir. 2004) (defining generic attempt). The text of the definitions are the same, and
    there is no operational difference in their application. The cases Pena-Robles
    identifies, State v. Walters, 
    804 P.2d 1164
     (Or. 1991), and Walters v. Maass, 45
                                              3                                    10-50440
    F.3d 1355 (9th Cir. 1995), present differing views on what acts are “strongly
    corroborative” of an intent to rape and sodomize a minor, but they apply the same
    law. See State v. Rinkin, 
    917 P.2d 1035
    , 1041 (Or. Ct. App. 1996) (“Thus, Maass
    and Walters apply the same standard to the same evidence and reach different
    results on the central issue of whether Walters’ conduct was sufficiently
    corroborative of the charged criminal purpose.”).
          Conviction of an aggravated felony with a sentence of more than five years
    rendered Pena-Robles ineligible for voluntary departure, asylum, and withholding
    of removal. 8 U.S.C. §§ 1158(b)(2), 1229c(a)(1), 1231(b)(3). Nor has Pena-
    Robles identified a plausible basis for deferral of removal under the Convention
    Against Torture, the only relief from removal remaining to him. 8 C.F.R.
    § 1208.17(a).
          Pena-Robles challenges the district court’s 16-level enhancement of his
    guideline offense level due to his prior conviction of a crime of violence under
    U.S.S.G. § 2L1.2. The district court did not err. Attempted murder is an
    enumerated crime of violence under the federal sentencing guidelines. U.S.S.G.
    § 2L1.2 cmt. note 1(B)(iii), 5. Oregon’s definition of attempted murder is
    coextensive with the federal generic definition.
                                              4                                     10-50440