                                                                               FILED
                            NOT FOR PUBLICATION                                 APR 09 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-10552

              Plaintiff - Appellee,               D.C. No. 3:12-cr-00440-CRB-1

  v.
                                                  MEMORANDUM*
CARLOS FRANCO VEGA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Charles R. Breyer, Senior District Judge, Presiding

                     Argued and Submitted November 19, 2014
                             San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.

       Carlos Franco Vega appeals: (1) the district court’s order denying his motion

to dismiss a charge of illegal reentry after deportation in violation of 8 U.S.C.

§ 1326; (2) the district court’s conclusion that his prior drug conviction triggered a

16-level sentence enhancement; and (3) the district court’s denial of his request for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a sentence reduction for acceptance of responsibility. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court’s order.1

1.    “We review de novo the district court’s denial of a motion to dismiss an

indictment under 8 U.S.C. § 1326 when the motion is based on an alleged

deprivation of due process in the underlying removal proceedings[.]” United

States v. Hernandez-Arias, 757 F.3d 874, 879 (9th Cir. 2014) (internal quotation

marks omitted). The district court did not err by denying Vega’s motion to dismiss

his illegal reentry indictment. Vega concedes in his reply brief that Coronado v.

Holder, 759 F.3d 977 (9th Cir. 2014), forecloses his argument that he was not

removable as charged. See United States v. Torre-Jimenez, 771 F.3d 1163, 1167

(9th Cir. 2014).

      Vega’s alternative argument challenging his conviction for unlawful reentry

is that the government failed to meet its burden of proof. Vega’s suggestion that

immigration officials would have terminated his expedited immigration

proceedings, rather than gather documentation establishing the nature of his

underlying conviction, is speculative. See United States v. Bustos-Ochoa, 704 F.3d

1053, 1056–57 (9th Cir. 2012).




      1
             The parties are familiar with the facts, so we do not recount them here.

                                          2
2.    “We generally review arguments not raised before the district court for plain

error,” United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009),

and Vega concedes that he did not object to the application of the 16-level

enhancement in the district court. The district court did not err by determining that

Vega’s § 11351 conviction qualifies as a drug trafficking offense supporting a 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Vega concedes that his

argument to the contrary depended on his contention that § 11351 was indivisible.

Torre-Jimenez foreclosed that argument. 771 F.3d at 1167.

3.    Whether a defendant accepted responsibility is a factual determination

reviewed for clear error. United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir.

2010). The district court did not impermissibly apply a per se bar to downward

adjustment based on Vega’s assertion of his right to a jury trial. See United States

v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir. 2013). Vega argued he was not

guilty because the government failed to prove the elements of the crime. The court

reasoned that “[Vega] argued he was not guilty. And [Vega] argued that a juror

should find – one or more should find him not guilty. And that to me is

inconsistent with acceptance of responsibility . . . .” Indeed, in his closing

argument, defense counsel argued that the jury “should have reasonable doubt if

[Vega] was physically removed and then returned” to the United States. Defense


                                           3
counsel also argued the government “brought [the jury] no evidence of . . . the

actus reus of this case. . . . The thing they allege he did, they brought you nothing

about that.” Unlike cases where a defendant proceeds to trial to contest

jurisdiction, see, e.g., United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002)

(contesting jurisdiction), here the district court properly determined that Vega

sought acquittal on the merits. Under these circumstances, the district court did not

err by ruling that Vega’s defense was inconsistent with acceptance of

responsibility.

      AFFIRMED.




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