                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 08 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50272

              Plaintiff - Appellee,              D.C. No. 3:09-cr-04335-W-1

  v.
                                                 MEMORANDUM *
MANUEL FEDERICO MARTINIE
BORBON,

              Defendant - Appellant.




                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                        Argued and Submitted May 3, 2011
                              Pasadena, California

Before: GOODWIN and WARDLAW, Circuit Judges, and COGAN, District
Judge.**




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Brian M. Cogan, U.S. District Judge for the Eastern New
York, sitting by designation.
      Manuel Federico Martinie Borbon appeals his conviction and sentence for

attempted entry after deportation in violation of 8 U.S.C. § 1326 and misuse of entry

documents in violation of § 1546(a). First, Borbon contends that the district court

erred in failing to dismiss the illegal entry charge because it was based on a prior

removal order entered in violation of his right to due process. Second, Borbon argues

that the district court erred in excluding evidence of his post-arrest statements. Third,

Borbon challenges his sentence as procedurally unreasonable. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Our circuit reviews de novo a claim that a defect in a prior removal proceeding

precludes reliance on the final removal order in a subsequent § 1326 proceeding.

United States v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010). To successfully bring a

collateral attack against a prior removal order, an alien must demonstrate that: “(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.” 8 U.S.C. § 1326(d). A predicate removal

order is “fundamentally unfair” under § 1326(d)(3) when “the deportation proceeding

violated the alien’s due process rights and the alien suffered prejudice as a result.”

United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010) (citing United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003)). Borbon has not met

the requisite showing of prejudice.

      Borbon argues that the failure to inform him of his right to counsel in a

language he could understand along with the failure to obtain a waiver of the right to

counsel constituted inherent prejudice. We disagree. In a separate opinion we held

that prejudice could not be presumed based on such a violation of an alien’s right to

counsel when an alien has been convicted of an aggravated felony. United States v.

Reyes-Bonilla, No. 10-50361, __ F.3d __, slip op. at 1173 (9th Cir. Feb. 6, 2012)

(“We therefore hold that in order to mount a successful collateral attack on a prior

removal order under § 1326(d), an alien who was convicted of an aggravated felony

and was not properly advised of his right to counsel or did not waive this right must

show that he was actually prejudiced by this due process violation.”).

      Borbon was an aggravated felon, and the conviction document relied upon in

his expedited removal proceedings, an abstract of judgment from his prior conviction

for possession of a controlled substance, was properly certified. Borbon has also

failed to show that he had plausible grounds for relief at the time of his removal

proceedings because he entered without inspection and was never lawfully admitted

as a permanent resident. See Ramos, 623 F.3d at 684 (“If the defendant is barred from

receiving relief, his claim is not plausible.”) (citation and internal quotation marks


                                          3
omitted). Accordingly, the district court correctly denied his motion to dismiss the

illegal entry charge.

       The district court’s exclusion of hearsay evidence is reviewed for an abuse of

discretion, see United States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir. 2009),

as is a procedural sentencing determination, United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc). The district court did not abuse its discretion in excluding

Borbon’s post-arrest statements regarding living conditions in Mexico.                The

statements were not relevant to the determination of Borbon’s specific intent to reenter

free from official restraint.

       The district court did not commit procedural error by inadequately specifying

the reasons for rejecting Borbon’s policy arguments against imposition of the sixteen-

level enhancement. At the hearing, the district court indicated that it reviewed all of

the sentencing documents and made explicit reference to Borbon’s recidivism and

criminal history. In sum, we find that the district court adequately considered the

pertinent factors in imposing a low-end Guidelines sentence. See Carty, 520 F.3d at

992 (“The district court need not tick off each of the § 3553(a) factors . . . .”).

       AFFIRMED.




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