                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 15 2012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. 11-50203

              Plaintiff - Appellee,              D.C. No. 3:10-cr-03366-WQH-1

  v.
                                                 MEMORANDUM *
MARCELO GONZALEZ-LOPEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                             Submitted March 7, 2012 **
                                Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

       Marcelo Gonzalez-Lopez appeals his conviction following a conditional

guilty plea for attempted reentry after deportation, in violation of 8 U.S.C. § 1326.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We affirm. Because the parties are familiar with the case history, we need not

recount it here.

                                          I

      Gonzalez-Lopez argues that the government’s failure to advise him of his

due process right to counsel in a language he could understand invalidated the

removal order that was the basis of the § 1326 conviction. The district court

denied his motion to dismiss the § 1326 indictment after finding that Gonzalez-

Lopez could not demonstrate a plausible claim of prejudice resulting from these

due process violations. We agree.

      Prejudice cannot be presumed from a failure to adequately inform an alien of

his right to counsel when the alien is an aggravated felon. United States v. Reyes-

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

Because he was incarcerated in state prison for more than a year for a robbery

conviction under California Penal Code § 211, Gonzalez-Lopez is considered an

aggravated felon under 8 U.S.C. § 1101(a)(43)(f). See 8 U.S.C. § 1101(a)(43)(f)

(defining an aggravated felony as “a crime of violence for which the term of

imprisonment is at least one year”), United States v. McDougherty, 920 F.2d 569,

573 (9th Cir. 1990) (holding that “robbery under California law is...by definition a




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crime of violence”). Therefore, the district court correctly denied his motion to

dismiss the indictment.

                                           II

      Gonzalez-Lopez alternatively argues that the conviction documents relied

upon to establish his aggravated felony conviction were improperly certified and

could have been challenged by competent counsel. However, he presents no

evidence to cast doubt upon the authenticity of the certified abstract of judgment in

the file. Nor did he submit any evidence contrary to the facts disclosed in the

abstract. The certified abstract describes the criminal charge, discloses the fact of

conviction, and reflects the sentence.

      Under the standards applicable to evidence admitted in immigration

proceedings, Gonzalez-Lopez was not denied his due process rights. See Rojas-

Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003) ( “‘[T]he sole test for

admission of evidence [in immigration proceedings] is whether the evidence is

probative and its admission is fundamentally fair.’”) (quoting Espinoza v. INS, 45

F.3d 308, 310 (9th Cir. 1995)).




      AFFIRMED.




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