United States v. Erik Leon Del Angel ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50254
Plaintiff-Appellee, D.C. No.
3:18-cr-04951-BEN-1
v.
ERIK SANTIAGO LEON DEL ANGEL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 8, 2020**
Pasadena, California
Before: KELLY,*** GOULD, and R. NELSON, Circuit Judges.
Erik Santiago Leon Del Angel appeals after a guilty plea and sentence for
attempted misdemeanor illegal entry, in violation of 8 U.S.C. § 1325, and a felony
*
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 Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291. We affirm for the reasons that follow.
1. Del Angel argues that the district court erred in denying his request
for a third post-plea, pre-sentencing continuance. We review the denial of a
motion for a continuance for abuse of discretion. United States v. Walter-Eze, 869
F.3d 891, 907–08 (9th Cir. 2017). We assume, without deciding, the four factors
laid out in United States v. Flynt apply to post-conviction, pre-sentencing requests
for continuances. 756 F.2d 1352, 1358–59 (9th Cir.), amended, 764 F.2d 675 (9th
Cir. 1985). We affirm because Del Angel fails to “show at a minimum that he has
suffered prejudice as a result of the denial of his request.” Id. at 1359.
Del Angel requested a third continuance believing our decision in C.J.L.G.
v. Barr, 923 F.3d 622 (9th Cir. 2019) (en banc), allowed him to vacate his prior
removal orders. But C.J.L.G. does not “provide . . . a previously unavailable
ground sufficient to provide some material relief,” United States v. Ensminger, 567
F.3d 587, 594 (9th Cir. 2009) (citation omitted). Attaining Special Immigrant
Juvenile (“SIJ”) status and becoming a legal permanent resident (“LPR”) would
not retroactively affect the elements of the criminal charge under 8 U.S.C. § 1326to which he pleaded guilty.1 See United States v. Gracidas-Ulibarry, 231 F.3d
1Del Angel did not argue below that attaining SIJ status would affect his guilty
plea under 8 U.S.C. § 1325, and appears to base his appeal only on his guilty plea
2
1188, 1196 (9th Cir. 2000) (en banc).
Attaining SIJ status would create a specialized parole legal fiction dating
back to either the time of Del Angel’s most recent entry in October 2018, or his
filing for SIJ status, but would not transform his most recent unlawful entry into a
lawful admission under § 1101(a)(13)(A). Garcia v. Holder, 659 F.3d 1261,
1263–64, 1267 (9th Cir. 2011); see also Alanniz v. Barr, 924 F.3d 1061, 1067 (9th
Cir. 2019). And Del Angel would only become an LPR at the date any adjustment
of status application might be approved. 7 USCIS Policy Manual, pt. F, ch.
7(E)(4). Thus, attaining SIJ or LPR status would not make his most recent
unlawful entry in 2018 lawful.
Attaining SIJ or LPR status would not automatically vacate Del Angel’s
prior removals, either. Rather, Del Angel would have to file a motion to reopen or
motion to reconsider an earlier removal order to vacate it. See Plasencia-Ayala v.
Mukasey, 516 F.3d 738, 745–46 (9th Cir. 2008), overruled on other grounds by
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). Del Angel
might not even be able to move to reopen or reconsider an expedited removal order
at all. See Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1966 (2020)
(citing 8 U.S.C. § 1252(e)(2)). Even if he could, any motion to reopen or
under 8 U.S.C. § 1326, waiving any other arguments. Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).
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reconsider his two expedited removals from December 2017 would be untimely
and he could not show “the delay was reasonable and was beyond [his] control.” 8
C.F.R. § 103.5.2Because attaining SIJ and LPR status would not impact his conviction, Del
Angel suffers little prejudice from denial of a continuance to seek these statuses.
C.J.L.G.’s holding––allowing an immigrant before an Immigration Judge to seek a
continuance and pursue SIJ status––has no direct bearing for a defendant in the
post-conviction, pre-sentence phase of a criminal case. The district court did not
abuse its discretion.
2. Del Angel argues that the district court erred in denying his motion to
withdraw his guilty plea. “We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion.” United States v. Garcia-Lopez,
903 F.3d 887, 890 (9th Cir. 2018) (cleaned up). Del Angel must “show a fair and
just reason” to withdraw his guilty plea.3 United States v. Shehadeh, 962 F.3d
2Because Del Angel had not “exhausted any administrative remedies that may
have been available to seek relief against the order,” he would not be able to
collaterally attack the validity of the predicate deportation order. See 8 U.S.C. §
1326(d)(1). Exhaustion is excused where an “IJ has failed to provide information
about apparent eligibility for relief” in violation of a statutory duty, United States
v. Vidal-Mendoza, 705 F.3d 1012, 1015 (9th Cir. 2013), but no such duty exists in
expedited removal proceedings, United States v. Sanchez-Aguilar, 719 F.3d 1108,
1112 (9th Cir. 2013).
3
We assume, without deciding, that Del Angel’s motion was timely filed before
imposition of his sentence.
4
1096, 1100 (9th Cir. 2020) (quoting Fed. R. Crim. P. 11(d)(2)(B)). As explained
above, the district court did not abuse its discretion by concluding that C.J.L.G. did
not apply in this case and there was no fair and just reason for withdrawal. See
Ensminger, 567 F.3d at 595.
3. Del Angel raises an ineffective assistance of counsel claim based on
his previous counsel’s alleged failure to raise Del Angel’s potential SIJ status. “As
a general rule, we do not review challenges to the effectiveness of defense counsel
on direct appeal.” United States v. Liu, 731 F.3d 982, 995 (9th Cir.
2013) (citations omitted). Neither exception to this general rule applies here. See
United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). “The record here is
not sufficiently developed to permit review and determination of the issue.”
Shehadeh, 962 F.3d at 1102 (internal quotation marks and citations omitted). In
particular, it is unclear “what, if any, prejudice resulted.” Benford, 574 F.3d at
1231. And the legal representation was not so inadequate that it obviously denied
Del Angel his Sixth Amendment right to counsel. Id. His ineffective assistance of
counsel claim “must be filed through a habeas petition.” Shehadeh, 962 F.3d at
1102.
AFFIRMED.
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