United States v. Filiberto Zavala-Cruz

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2023
• Docket: 21-10079
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10079

Plaintiff-Appellee, D.C. Nos. 3:19-cr-00701-WHO-1 v. 3:19-cr-00701-WHO

FILIBERTO ZAVALA-CRUZ, AKA Jose Luis Navarro-Camacho, AKA Filiberto MEMORANDUM * Zavala, AKA Julio Zavala Cruz, AKA Julio Zavala-Cruz, AKA Filiberto Zavala-Medina,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted July 11, 2023 San Francisco, California

Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.

Filiberto Zavala-Cruz (“Zavala”) appeals from his guilty-plea conviction for

illegal reentry following removal, in violation of 8 U.S.C. § 1326. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

The district court did not err in denying Zavala’s motions to dismiss the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. indictment. First, Zavala argues that the removal order upon which his conviction

was predicated was fundamentally unfair under 8 U.S.C. § 1326(d)(3) because of

ineffective assistance of counsel and procedural errors. This argument is unavailing

because Zavala failed to establish prejudice from any defect in the immigration

court proceedings. See United States v. Gonzalez-Flores, 804 F.3d 920, 927–29

(9th Cir. 2015). Zavala did not make “a plausible showing that an [immigration

judge] presented with all of the facts would exercise discretion” to grant him

voluntary departure. Id. at 927 (internal quotation marks omitted). Because we

affirm the district court’s decision with respect to prejudice, we need not address

Zavala’s arguments as to the other elements of a collateral attack under 8 U.S.C.

§ 1326(d).

Second, as Zavala concedes, any omissions in the notice to appear did not

deprive the immigration court of jurisdiction. See United States v. Bastide-

Hernandez, 39 F.4th 1187, 1192–93 (9th Cir. 2022) (en banc).

AFFIRMED.