                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 14 2011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. 07-50435

               Plaintiff - Appellee,             D.C. No. CR-06-02515-TJW

  v.
                                                 MEMORANDUM *
SERGIO LUA-BERMEJO,

               Defendant - Appellant.



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

                              Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       Sergio Lua-Bermejo appeals from his conviction for attempted entry after

deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.




          *
             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).
      Lua-Bermejo contends that the district court erred when it denied his motion

to dismiss the indictment because the prior removal alleged in the indictment was

the product of a fundamentally unfair deportation proceeding. First, Lua-Bermejo

contends that his appeal waiver was invalid. The record reflects that his waiver

was “considered and intelligent.” United States v. Estrada-Torres, 179 F.3d 776,

781 (9th Cir. 1999) (per curiam), overruled on other grounds by United States v.

Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc).

      Second, Lua-Bermejo contends that he was not adequately advised of

possible eligibility for discretionary relief under former section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994). There was no

possibility that Lua-Bermejo was eligible for relief because he did not have the

requisite seven years of unrelinquished domicile. See 8 U.S.C. § 1182(c) (1994);

United States v. Lopez-Velasquez, 629 F.3d 894, 896-901 (9th Cir. 2010) (en

banc). Accordingly, the immigration judge did not have a duty to inform him of

such relief. See Lopez-Velasquez, 629 F.3d at 901.

      Finally, Lua-Bermejo contends that his waiver of the right to counsel was

not knowing and voluntary. This contention was not raised in the district court and




                                           2                                       07-50435
we decline to consider it for the first time on appeal. See Rhoades v. Henry, 598

F.3d 495, 501 & n.7 (9th Cir. 2010).

      AFFIRMED.




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