                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 15 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-10490

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00071-FCD-1

  v.
                                                 MEMORANDUM*
FERNANDO BARRERA-SAMANO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Frank C. Damrell, Senior District Judge, Presiding

                           Submitted August 11, 2011**
                             San Francisco, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.

       Defendant Fernando Barrera-Samano appeals from the district court’s denial

of his motion to dismiss the indictment charging him under 8 U.S.C. § 1326 for

illegally reentering the United States after the government removed him in 2002.

Defendant argues that the indictment improperly relied on his 2002 removal order,

        *
             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. Fed. R. App. P. 34(a)(2).
because his 2002 removal proceedings did not provide him with due process under

United States v. Mendoza-Lopez, 481 U.S. 828, 838 (1987). Reviewing de novo,

United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001), we dismiss this

appeal.

      After the district court denied Defendant’s motion to dismiss, Defendant

unconditionally pleaded guilty to the charge. Subject to few exceptions, "when the

judgment of conviction upon a guilty plea has become final and the offender seeks

to reopen the proceeding, the inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary." United States v. Broce, 488

U.S. 563, 569 (1989). Even when a person’s guilty plea does not prevent him from

challenging the legality of his conviction, his challenge may proceed only if it was

clear from the face of the record at the time of his guilty plea that the district court

"had no power to enter the conviction or impose the sentence." Id.

      Because the record at the time of Defendant’s guilty plea failed to

demonstrate a plausible ground for relief from deportation that was available to

him in 2002, it was not clear from the face of the record that Defendant had a

meritorious claim under Mendoza-Lopez. See United States v. Garcia-Martinez,

228 F.3d 956, 959 & n.5, 960 (9th Cir. 2000). Accordingly, Defendant’s guilty

plea bars him from appealing the district court’s denial of his motion to dismiss.


                                            2
See United States v. Montilla, 870 F.2d 549, 552-53 (9th Cir. 1989) (holding that a

defendant had waived her due process claim because, "[o]n its face, the indictment

alleged offenses that were well within the government's power to prosecute" and,

although "[t]he record at the time the judge accepted [the defendant’s] plea

contained allegations of unconstitutional behavior, . . . establishing their truth

required further proceedings"), as amended, 907 F.2d 115 (9th Cir. 1990).

      Appeal DISMISSED.




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