United States v. Jesus Landeros-Morales ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30207
Plaintiff-Appellee, D.C. No.
1:18-cr-02011-LRS-1
v.
JESUS LANDEROS-MORALES, AKA MEMORANDUM*
David Walle-Lopez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted December 10, 2020
Seattle, Washington
Before: BERZON, MILLER, and BRESS, Circuit Judges.
Jesus Landeros-Morales appeals from his conviction for illegal reentry, in
violation of 8 U.S.C. § 1326. He argues that the district court should have dismissed
the indictment because his underlying deportation order was invalid. We have
jurisdiction under 28 U.S.C. § 1291. We review this issue de novo, United States v.
Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
A defendant charged with illegal reentry may bring a collateral challenge to
his underlying deportation order if he shows that (1) his “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. Vidal-Mendoza, 705 F.3d 1012,
1015–16 (9th Cir. 2013). Landeros-Morales argues that the immigration judge (IJ)
in his 1993 deportation proceeding violated due process by failing to inform him that
he was eligible for a discretionary waiver of relief from deportation under section
212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. III 1992)
(repealed 1996). See Vidal-Mendoza, 705 F.3d at 1016.
Assuming without deciding that the IJ violated due process, Landeros-
Morales is not entitled to relief because he cannot demonstrate prejudice. To show
prejudice, Landeros-Morales bears the burden of showing that it is “plausible,” and
not “merely conceivable or possible,” that the IJ would have granted him § 212(c)
relief. United States v. Valdez-Novoa, 780 F.3d 906, 914 (9th Cir. 2015). In
conducting the prejudice inquiry in the section 212(c) context, we weigh the
defendant’s positive factors, such as “family ties within the United States” and “a
history of employment,” against factors unfavorable to the defendant, such as “the
nature and underlying circumstances of the exclusion or deportation ground at issue”
and “the existence, seriousness, and recency of any criminal record.” Yepes-Prado
v. INS, 10 F.3d 1363, 1366 (9th Cir. 1993) (citing Matter of Edwards, 20 I. & N.
2
Dec. 191, 195 (B.I.A. 1990)). In addition, a defendant “who [has] been convicted
of serious drug offenses, particularly trafficking,” or whose “record reflects a pattern
of serious criminal activity,” must show “outstanding equities.” Ayala-Chavez v.
INS, 944 F.2d 638, 641 (9th Cir. 1991). Because of his 1988 drug convictions,
Landeros-Morales is subject to this “higher standard.” See id.While we acknowledge Landeros-Morales’s family ties, employment history,
and other positive factors in the record, in light of his extensive and serious criminal
history, Landeros-Morales has not shown it is plausible that the IJ would have
granted him § 212(c) relief. Valdez-Novoa, 780 F.3d at 914.
To begin, in 1988, Landeros-Morales was convicted in federal court of
conspiracy to distribute cocaine and possession with intent to distribute cocaine,
resulting in concurrent 8-year sentences. The circumstances of this offense were
serious, with Landeros-Morales selling a kilogram of cocaine to an undercover
officer for $28,500. Upon Landeros-Morales’s arrest, police discovered another
kilogram of cocaine and a revolver in the vehicle used for the transaction. At the
time, Landeros-Morales was part of a complex drug trafficking organization that was
also linked to numerous firearms.
That Landeros-Morales has not shown “outstanding equities,” Ayala-Chavez,
944 F.2d at 641, is confirmed by evidence in the record that by 1993, Landeros-
Morales had amassed a substantial criminal record under various aliases. While the
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district court noted that Landeros-Morales’s Immigration and Naturalization Service
(INS) file “raise[d] legitimate questions” about whether he committed all of the
crimes attributed to him under these aliases, the district court also found “strong
evidence” that Landeros-Morales was responsible for many of the immigration and
criminal violations set forth in his INS file. Reviewing for clear error, Reyes-Bonilla,
671 F.3d at 1042, it is apparent that at least some of the offenses at issue can be
attributed to Landeros-Morales.
In particular, “David Walle-Lopez” was apprehended in 1974 for smuggling
eleven illegal aliens into the United States, and in 1975 for smuggling two more.
Landeros-Morales does not dispute that he is “David Walle-Lopez”; in fact, as the
district court noted, Landeros-Morales signed his name “David Walle-Lopez” on
various court documents during this case. In addition, “Trinidad Mendoza-Sanchez”
was arrested in 1982 for smuggling four illegal aliens. Photographs in the record
support the government’s position that Landeros-Morales is “Trinidad Mendoza-
Sanchez.”
This additional criminal history further confirms our conclusion that
Landeros-Morales has not met his burden to show “outstanding equities.” And while
Landeros-Morales cites cases that he claims show the IJ would have granted him
§ 212(c) relief, those cases involved defendants with less substantial criminal
histories and convictions and more compelling positive factors. See, e.g., In re
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Catalina Arreguin de Rodriguez, 21 I. & N. Dec. 38, 42 (B.I.A. 1995). Because
Landeros-Morales has not demonstrated prejudice from the IJ’s alleged due process
violation, the district court did not err in denying Landeros-Morales’s motion to
dismiss the indictment.
AFFIRMED.
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