                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 10 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50207

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-01789-LAB-1
 v.

FIDENCIO CASTRO-VERDUGO, AKA                    MEMORANDUM*
Fidel Castro-Verdugo,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                            Submitted October 3, 2017**
                               Pasadena, California

Before: GRABER, MURGUIA, and CHRISTEN, Circuit Judges.

      Defendant Fidencio Castro-Verdugo appealed the district court’s denial of

his 8 U.S.C. § 1326(d) motion to dismiss the indictment, in which he argued that

his underlying removal proceeding did not comport with due process and could not



      *
             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. See Fed. R. App. P. 34(a)(2).
serve as the basis for his charge under 8 U.S.C. § 1326. Reviewing de novo, United

States v. Pallares-Galan, 359 F.3d 1088, 1094 (9th Cir. 2004), we affirm.

      The district court did not err in denying Castro-Verdugo’s motion to dismiss

the indictment. The IJ complied with the procedural due process requirement to

inform Castro-Verdugo of his eligibility to apply for relief from removal and

afford him the opportunity to apply for such relief. See United States v. Gonzalez-

Flores, 804 F.3d 920, 927 (9th Cir. 2015), cert. denied, 136 S. Ct. 1234 (2016). The

IJ “meaningfully advised” Castro-Verdugo of his rights where the IJ informed him

of the right to present evidence, identified the specific relief he might be eligible

for, and engaged in a one-on-one discussion with him giving him an opportunity to

understand what the IJ was considering and to respond. See United States v.

Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam).

      Castro-Verdugo also argues that his case is analogous to Melendez-Castro in

which the court held Melendez-Castro was not meaningfully advised of his right to

seek voluntary departure because the IJ told Melendez-Castro that he was eligible

for relief, but immediately stated he would not grant the relief because of

Melendez-Castro’s criminal history. Id. However, Melendez-Castro is

distinguishable because here there is no indication in the record before us that the

IJ prejudged Castro-Verdugo’s possible application for relief.

       Accordingly, Castro-Verdugo’s underlying removal order is not


                                           2
fundamentally unfair and stands as a predicate element for his charge under 8

U.S.C. § 1326, removed alien found in the United States.

      AFFIRMED.




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