United States v. Carlos Lopez-Lopez

473 F. App'x 565

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2012
• Docket: 11-50198
• Status: Unpublished

Opinion

MEMORANDUM **

Defendant Carlos Rogelio Lopez-Lopez (“Lopez”) was indicted on charges of attempted re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b), and false claim to United States Citizenship, in violation of 18 U.S.C. § 911. A jury found Lopez guilty on both counts. Lopez appeals his convictions and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We address Lopez’s arguments in turn.

1. Lopez’s collateral attack under 8 U.S.C. § 1326(d) on his prior order of removal fails because Lopez cannot establish that he had a “plausible ground for relief from [removal].” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (internal quotation marks omitted).

Lopez cannot establish that he had a plausible ground for relief from removal because his 2008 conviction for “receipt of a stolen vehicle,” in violation of California Penal Code § 496d(a), was categorically an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). See Alvarez-Reynaga v. Holder, 596 F.3d 534, 536-37 (9th Cir. 2010) (holding that alien’s conviction for “receipt of a stolen vehicle,” in violation of California Penal Code § 496d(a), was categorically an aggravated felony under 8 U.S.C. § 1101 (a)(43)(G)); Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir.2009) (holding that alien’s conviction for “receipt of stolen property,” in violation of California Penal Code § 496(a), was categorically an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G)). Because Lopez’s conviction was categorically an aggravated felony, Lopez was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and was also ineligible for cancellation of removal or voluntary departure. See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1).

2. Even if the district court erred when it applied a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for Lopez’s prior conviction under California Health & Safety Code § 11352(a), any such error was harmless. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir.2010) (“When an ‘alleged error is harmless, it is not a ground for resentencing.’”) (internal alteration omitted) (quoting United States v. Garro, 517 F.3d 1163, 1169 (9th Cir.2008)). Lopez’s prior conviction under California Health & Safety Code § 11351 could have justified the enhancement.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provid ed by 9th Cir. R. 36-3.