                                                                              FILED
                              NOT FOR PUBLICATION                              OCT 17 2011

                                                                           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. 10-30383

                Plaintiff - Appellee,               D.C. No. 2:09-cr-06057-RHW-1

    v.
                                                    MEMORANDUM *
DIONCIO VILLANUEVA
LABASTIDA, AKA Dionicio Villanueva-
Labastida,

                Defendant - Appellant.


                     Appeal from the United States District Court
                         for the Eastern District of Washington
                   Robert H. Whaley, Senior District Judge, Presiding

                              Submitted October 12, 2011 **
                                  Seattle, Washington

Before:        KOZINSKI, Chief Judge, BEEZER and PAEZ, Circuit Judges.


         1. The retroactivity principle articulated in INS v. St. Cyr, 533 U.S. 289, 326

(2001), applies only to prior convictions by plea bargain. See Armendariz-Montoya

          *
             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).
.
                                                                                    page 2

v. Sonchik, 291 F.3d 1116, 1121–22 (9th Cir. 2002). Because Labastida’s 1989

conviction was by jury trial, denial of relief on account of that conviction did not

render his 1992 deportation order “fundamentally unfair.” 8 U.S.C.             §

1326(d)(3).


      2. “[A] criminal conviction cannot be attacked collaterally in a deportation

proceeding.” Mendez-Alcaraz v. Gonzalez, 464 F.3d 842, 845 n.14 (9th Cir. 2006).

Accordingly, Labastida’s allegations about his prior criminal proceedings, if true,

were not a “plausible ground for relief from deportation,” United States v. Ubaldo-

Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (internal quotation marks omitted),

and so couldn’t render his deportation orders fundamentally unfair.


      3. “[F]amily ties and responsibilities are not ordinarily relevant in

determining whether a departure [from the applicable Guidelines range] may be

warranted.” U.S.S.G. § 5H1.6. Labastida’s adult children living in the United

States do not present an exceptional case, so the district judge didn’t abuse his

discretion in denying a downward departure. See Gall v. United States, 552 U.S.

38, 51 (2007).


      AFFIRMED.
