United States v. David Escobar-Menjivar

407 F. App'x 231

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 4, 2011
• Docket: 10-10059
• Status: Unpublished

Opinion

MEMORANDUM **

David Antonio Escobar-Menjivar appeals from his conviction for being a deported alien found unlawfully in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on any ground supported by the record. See United States v. Tello, 600 F.3d 1161, 1167 n. 6 (9th Cir.2010). We affirm.

Escobar-Menjivar contends that the district court erred in denying his motion to dismiss the indictment because the prior removal alleged in the indictment was the product of a fundamentally unfair deportation proceeding. On appeal, Escobar-Menjivar argues that he was not adequately advised of possible eligibility for relief from removal pursuant to 8 U.S.C. § 1229c(a). The contention fails because Escobar-Menjivar cannot demonstrate prejudice from any alleged due process violation, as he was previously permitted to voluntarily depart. See 8 U.S.C. § 1229c(c); see also United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir.2003) (holding that district court should have denied motion to dismiss an 8 U.S.C. § 1326 indictment where the defendant failed to show prejudice resulting from due process violation in deportation proceedings).

AFFIRMED.

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