United States v. Omar Dominguez-Valencia

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 31, 2019
• Docket: 15-50422
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 31 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50422

Plaintiff-Appellee, D.C. No. 3:11-cr-01750-BTM-1 v.

OMAR DOMINGUEZ-VALENCIA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Submitted October 24, 2019** Pasadena, California

Before: KLEINFELD, CALLAHAN, and R. NELSON, Circuit Judges.

Omar Dominguez-Valencia, originally admitted to the United States as a

non-immigrant when he was a child, makes a second collateral challenge to his

* 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). underlying removal order. He argues that recent Supreme Court case law

precludes his prior burglary conviction from being designated as a crime of

violence. Dominguez-Valencia also challenges the 24-month sentence he received

subsequent to his prior appeal to this Court, on the similar basis that his prior

robbery conviction should not have been considered a crime of violence.

We review both de novo. See United States v. Rojas-Pedroza, 716 F.3d

1253, 1261 (9th Cir. 2013); United States v. Figueroa-Ocampo, 494 F.3d 1211,

1213 (9th Cir. 2007). We conclude that the rule of mandate precludes a new

challenge to his underlying conviction and that his sentencing challenge is moot.

The rule of mandate doctrine provides that when “a case has been once

decided by this court on appeal, and remanded to the district court, whatever was

before this court, and disposed of by its decree, is considered as finally settled.”

United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007), cert. denied, 553

U.S. 1007 (2008). We treat this rule as jurisdictional. Id. at 982. In Dominguez-

Valencia’s previous appeal, we explicitly rejected his 8 U.S.C. § 1326(d) argument

and affirmed his conviction. This Court’s mandate limited the district court’s

authority to the issue of resentencing. Accordingly, under Circuit authority,

2 Dominguez-Valencia may not re-litigate this claim, despite subsequent authority.

See Planned Parenthood of Columbia/Willamette Inc. v. Am. Coal. of Life

Activists, 422 F.3d 949, 966 (9th Cir. 2005) (quoting Coleman Co. v. Holly Mfg.

Co., 269 F.2d 660, 664 (9th Cir.1959)).

On the resentencing issue, we conclude that because Dominguez-Valencia

has already completed his term of imprisonment, his challenge to the sentence he

received is moot. No collateral consequences flow from the duration of his

completed sentence. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Dominguez-

Valencia’s appeal is limited to his sentencing, and the collateral consequences of

the conviction are independent of the precise sentence he received. As he is no

longer in custody or subject to supervised release, he has no stake in the outcome

of this claim. He therefore has no Article III, § 2 standing.

Dominguez-Valencia’s conviction is therefore AFFIRMED.