NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA. No. 19-50333
Plaintiff-Appellee, D.C. No. 5:18-cr-00110-CJC-1
v.
JOSE ORNELAS-DOMINGUEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding
Submitted June 9, 2021** Pasadena, California
Before: MURGUIA, BADE, and LEE, Circuit Judges.
Jose Ornelas-Dominguez was convicted and sentenced to eighteen months’
imprisonment for illegal reentry after removal in violation of 8 U.S.C. § 1326(a).
He now appeals the district court’s denial of his motion to dismiss the indictment,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). attacking both his prior removal in 2000 and expedited removal in 2011. He also
challenges his criminal sentence, arguing that the district court erred by imposing a
sentencing enhancement for obstruction of justice and denying his request for a
downward adjustment for acceptance of responsibility. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. For Ornelas-Dominguez to prevail on his challenge of his illegal reentry
conviction, he must show that both the 2000 and 2011 removals were unlawful. See
United States v. Rojas-Pedroza, 716 F.3d 1253, 1261 (9th Cir. 2013). We “review[]
de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the
motion to dismiss is based on alleged due process defects in an underlying
deportation proceeding.” United States v. Flores, 901 F.3d 1150, 1155 (9th Cir.
2018) (citation omitted). Factual findings are reviewed for clear error. Id.
Ornelas-Dominguez cannot mount a collateral attack on his 2011 expedited
removal because he cannot satisfy Section 1326(d)’s requirements. Section 1326(d)
gives defendants an opportunity to challenge the validity of prior deportation orders
in criminal proceedings arising under Section 1326. 8 U.S.C. § 1326(d). To pursue
a collateral attack, an alien must show:
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.
2 8 U.S.C. § 1326(d).
Ornelas-Dominguez argues that he has demonstrated that the 2011 expedited
removal order was fundamentally unfair under Section 1326(d)(3) because the
immigration officer did not require him to sign Form I-860, purportedly violating 8
C.F.R. § 1235.3(b)(2)(i). Even assuming that Ornelas-Dominguez is correct that the
officer violated that regulation, the failure to follow a regulation does not necessarily
mean the removal order was fundamentally unfair. And Ornelas-Dominguez has
not shown that the alleged failure to follow the regulation amounts to a due process
violation such that it was fundamentally unfair under Section 1326(d)(3). See
United States v. Raya-Vaca, 771 F.3d 1195, 1201-02, 1204–05 (9th Cir. 2014),
abrogated on other grounds, Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct.
1959 (2020).
The record indicates that the immigration officer informed Ornelas-
Dominguez of the charges of removability and that Ornelas-Dominguez received
notice of those charges. See United States v. Barajas-Alvarado, 655 F.3d 1077,
1088 n.12 (9th Cir. 2011). Consequently, Ornelas-Dominguez has failed to establish
that the entry of the 2011 expedited removal was fundamentally unfair under Section
1326(d)(3). Raya-Vaca, 771 F.3d at 1202, 1204–05; Barajas-Alvarado, 655 F.3d at
1088 n.12. We therefore affirm the district court’s denial of Ornelas-Dominguez’s
motion to dismiss the indictment under Section 1326(d).
3 2. Ornelas-Dominguez’s sentencing challenges also fail. We review de
novo a district court’s identification of the correct legal standard but apply the clear
error standard to factual findings. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170
(9th Cir. 2017) (en banc). “[A] district court’s application of the Sentencing
Guidelines to the facts of a given case [are] reviewed for abuse of discretion.” Id.
But “[t]he district court’s determination that [the defendant] obstructed justice is a
factual finding reviewed for clear error.” United States v. Jimenez, 300 F.3d 1166,
1170 (9th Cir. 2002).
Ornelas-Dominguez fled the rehabilitation facility before being sentenced,
resulting in an obstruction of justice enhancement. He argues that because his drug
addiction purportedly prevented him from acting “willfully,” the district court erred
in applying that enhancement. Likewise, he maintains that the district court erred in
denying him a downward adjustment for acceptance of responsibility because he
fled to seek drugs, not to obstruct justice for the sake of obstruction.
Under the Sentencing Guidelines, a district court may impose the two-level
enhancement:
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.
4 U.S. Sent’g Guidelines Manual § 3C1.1 (U.S. Sent’g Comm’n 2018). The Notes
describe “obstructive conduct” as including, but not limited to: “escaping or
attempting to escape from custody before trial or sentencing; or willfully failing to
appear, as ordered, for a judicial proceeding.” U.S. Sent’g Guidelines Manual §
3C1.1, cmt. n.4(E). Our precedent clearly establishes that “[a]bsconding from
pretrial release” constitutes an obstruction of justice. United States v. Draper, 996
F.2d 982, 986 (9th Cir. 1993). Likewise, a district court may infer obstructive intent
from a defendant’s actions, including escape. See United States v. Takahashi, 205
F.3d 1161, 1168 (9th Cir. 2000). Ornelas-Dominguez remained a fugitive until
January of the following year.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA. No. 19-50333
Plaintiff-Appellee, D.C. No. 5:18-cr-00110-CJC-1
v.
JOSE ORNELAS-DOMINGUEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding
Submitted June 9, 2021** Pasadena, California
Before: MURGUIA, BADE, and LEE, Circuit Judges.
Jose Ornelas-Dominguez was convicted and sentenced to eighteen months’
imprisonment for illegal reentry after removal in violation of 8 U.S.C. § 1326(a).
He now appeals the district court’s denial of his motion to dismiss the indictment,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). attacking both his prior removal in 2000 and expedited removal in 2011. He also
challenges his criminal sentence, arguing that the district court erred by imposing a
sentencing enhancement for obstruction of justice and denying his request for a
downward adjustment for acceptance of responsibility. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. For Ornelas-Dominguez to prevail on his challenge of his illegal reentry
conviction, he must show that both the 2000 and 2011 removals were unlawful. See
United States v. Rojas-Pedroza, 716 F.3d 1253, 1261 (9th Cir. 2013). We “review[]
de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the
motion to dismiss is based on alleged due process defects in an underlying
deportation proceeding.” United States v. Flores, 901 F.3d 1150, 1155 (9th Cir.
2018) (citation omitted). Factual findings are reviewed for clear error. Id.
Ornelas-Dominguez cannot mount a collateral attack on his 2011 expedited
removal because he cannot satisfy Section 1326(d)’s requirements. Section 1326(d)
gives defendants an opportunity to challenge the validity of prior deportation orders
in criminal proceedings arising under Section 1326. 8 U.S.C. § 1326(d). To pursue
a collateral attack, an alien must show:
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.
2 8 U.S.C. § 1326(d).
Ornelas-Dominguez argues that he has demonstrated that the 2011 expedited
removal order was fundamentally unfair under Section 1326(d)(3) because the
immigration officer did not require him to sign Form I-860, purportedly violating 8
C.F.R. § 1235.3(b)(2)(i). Even assuming that Ornelas-Dominguez is correct that the
officer violated that regulation, the failure to follow a regulation does not necessarily
mean the removal order was fundamentally unfair. And Ornelas-Dominguez has
not shown that the alleged failure to follow the regulation amounts to a due process
violation such that it was fundamentally unfair under Section 1326(d)(3). See
United States v. Raya-Vaca, 771 F.3d 1195, 1201-02, 1204–05 (9th Cir. 2014),
abrogated on other grounds, Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct.
1959 (2020).
The record indicates that the immigration officer informed Ornelas-
Dominguez of the charges of removability and that Ornelas-Dominguez received
notice of those charges. See United States v. Barajas-Alvarado, 655 F.3d 1077,
1088 n.12 (9th Cir. 2011). Consequently, Ornelas-Dominguez has failed to establish
that the entry of the 2011 expedited removal was fundamentally unfair under Section
1326(d)(3). Raya-Vaca, 771 F.3d at 1202, 1204–05; Barajas-Alvarado, 655 F.3d at
1088 n.12. We therefore affirm the district court’s denial of Ornelas-Dominguez’s
motion to dismiss the indictment under Section 1326(d).
3 2. Ornelas-Dominguez’s sentencing challenges also fail. We review de
novo a district court’s identification of the correct legal standard but apply the clear
error standard to factual findings. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170
(9th Cir. 2017) (en banc). “[A] district court’s application of the Sentencing
Guidelines to the facts of a given case [are] reviewed for abuse of discretion.” Id.
But “[t]he district court’s determination that [the defendant] obstructed justice is a
factual finding reviewed for clear error.” United States v. Jimenez, 300 F.3d 1166,
1170 (9th Cir. 2002).
Ornelas-Dominguez fled the rehabilitation facility before being sentenced,
resulting in an obstruction of justice enhancement. He argues that because his drug
addiction purportedly prevented him from acting “willfully,” the district court erred
in applying that enhancement. Likewise, he maintains that the district court erred in
denying him a downward adjustment for acceptance of responsibility because he
fled to seek drugs, not to obstruct justice for the sake of obstruction.
Under the Sentencing Guidelines, a district court may impose the two-level
enhancement:
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.
4 U.S. Sent’g Guidelines Manual § 3C1.1 (U.S. Sent’g Comm’n 2018). The Notes
describe “obstructive conduct” as including, but not limited to: “escaping or
attempting to escape from custody before trial or sentencing; or willfully failing to
appear, as ordered, for a judicial proceeding.” U.S. Sent’g Guidelines Manual §
3C1.1, cmt. n.4(E). Our precedent clearly establishes that “[a]bsconding from
pretrial release” constitutes an obstruction of justice. United States v. Draper, 996
F.2d 982, 986 (9th Cir. 1993). Likewise, a district court may infer obstructive intent
from a defendant’s actions, including escape. See United States v. Takahashi, 205
F.3d 1161, 1168 (9th Cir. 2000). Ornelas-Dominguez remained a fugitive until
January of the following year. Therefore, the district court did not clearly err in
concluding that Ornelas-Dominguez willfully remained out of custody.
Ornelas-Dominguez’s final challenge—that his is an “extraordinary case[]”
warranting a downward adjustment for acceptance of responsibility—fares no
better. Section 3E1.1 permits a two-level downward adjustment “[i]f the defendant
clearly demonstrates acceptance of responsibility for his [or her] offense.” U.S.
Sent’g Guidelines Manual § 3E1.1(a). However, pursuant to the Guidelines
Application Notes:
Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both § 3C1.1 and § 3E1.1 may apply.
5 U.S. Sent’g Guidelines Manual § 3E1.1, cmt. n.4. In United States v. Hopper, we
interpreted Application Note 4’s “extraordinary case” reference as an inquiry into
whether “the defendant’s obstructive conduct is not inconsistent with the
defendant’s acceptance of responsibility.” 27 F.3d 378, 383 (9th Cir. 1994). Here,
Ornelas-Dominguez’s pre-sentencing flight undermines his initial acceptance of
responsibility. See United States v. Rosas, 615 F.3d 1058, 1067 (9th Cir. 2010)
(stating that mitigating factors “d[id] not change the fact that [the defendant’s]
flight” from the country a day before state sentencing “was voluntary and that he
had not accepted the responsibility”).
AFFIRMED.