United States v. Dioncio Labastida

454 F. App'x 568

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2011
• Docket: 10-30383
• Status: Unpublished

Opinion

MEMORANDUM **

1. The retroactivity principle articulated in INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), applies only to prior convictions by plea bargain. See Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002). Because Labastida’s 1989 conviction was by jury trial, denial of relief on account of that conviction did not render his 1992 deportation order “fundamentally unfair.” 8 U.S.C. 1326(d)(3).

2. “[A] criminal conviction cannot be attacked collaterally in a deportation proceeding.” Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 845 n. 14 (9th Cir.2006). Accordingly, Labastida’s allegations about his prior criminal proceedings, if true, were not a “plausible ground for relief from deportation,” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004) (internal quotation marks omitted), and so couldn’t render his deportation orders fundamentally unfair.

3. “[Fjamily ties and responsibilities are not ordinarily relevant in determining whether a departure [from the applicable Guidelines range] may be warranted.” U.S.S.G. § 5H1.6. Labastida’s adult children living in the United States do not present an exceptional case, so the district judge didn’t abuse his discretion in denying a downward departure. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

AFFIRMED.

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