United States v. Flores-Cano

212 F. App'x 666

Opinion

MEMORANDUM

**

Carlos Flores-Cano appeals from his conviction and 52-month sentence following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291,- and we affirm the conviction and vacate and remand the sentence.

Flores-Cano contends that the district court erred in denying his motion to dismiss the indictment on the grounds that his prior removal was invalid. Specifically, Flores-Cano argues that because the immigration judge (“IJ”) failed to tell him that he was eligible for relief from removal by requesting voluntary departure under 8 U.S.C. § 1229c, his removal proceeding was defective and cannot form the basis for a conviction under 8 U.S.C. § 1326. We disagree.

Even assuming Flores-Cano’s pri- or removal proceeding was defective, because the record demonstrates that his Nevada state drug conviction is a drug trafficking crime, see 8 U.S.C. § 1101(a)(43)(B); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), he fails to demonstrate how any due process violation at the removal proceeding prejudiced him. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004).

Because under the modified categorical approach Flores-Cano’s Nevada state conviction is a drug trafficking crime, his contention that the district court erred by enhancing his sentence must fail. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143; U.S.S.G. § 2L1.2(b)(1)(A)(i).

Next, as Flores-Cano concedes, it was not error for the district court to enhance his sentence under 8 U.S.C. § 1326(b) based on a prior conviction that was not alleged in the indictment, proven beyond a reasonable doubt or admitted by Flores-Cano. See United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004) (order).

However, because Flores-Cano preserved his challenge to the district court’s use of mandatory Sentencing Guidelines (a “nonconstitutional Booker error”), see United States v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir.2006), and because we cannot say that the error was harmless beyond a reasonable doubt, we vacate the judgment and remand for full resentencing. See id. at 1095-97.

CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.