                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50141

                Plaintiff-Appellee,             D.C. No.
                                                2:12-cr-00843-DMG-1
 v.

RAUL GUZMAN-IBAREZ, AKA Raul                    MEMORANDUM*
Guzman, AKA Raul Ibarez Guzman, Jr.,
AKA Raul Ibarez, AKA Raul Guzman
Ibarez, Jr., AKA Little Playboy, AKA
Manuel Torres, AKA Miguel Duran Torres,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                          Submitted December 12, 2019**
                              Pasadena, California

Before: BOGGS,*** WARDLAW, and BEA, Circuit Judges.



      *
             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).
      ***
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
      Raul Guzman-Ibarez (“Guzman”), a native and citizen of Mexico, appeals the

district court’s judgment reinstating his conviction and sentence for illegal reentry

after deportation in violation of 8 U.S.C. § 1326. We review de novo a collateral

attack on a prior deportation order in a prosecution under 8 U.S.C. § 1326. United

States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014); United States v.

Vidal-Mendoza, 705 F.3d 1012, 1014 (9th Cir. 2013). We may affirm the district

court’s denial of a motion to dismiss an indictment on any basis supported by the

record. United States v. Davis, 336 F.3d 920, 922 (9th Cir. 2003).

      1.      As Guzman concedes, our recent decision in United States v. Martinez-

Hernandez, 932 F.3d 1198, 1205–07 (9th Cir. 2019), forecloses his argument that

his robbery conviction under California Penal Code section 211 does not qualify as

an aggravated felony. Accordingly, any error in the district court’s failure to consider

this issue was harmless.

      2.     Guzman next argues that the district court erred in concluding that he

was not prejudiced by the immigration judge’s (“IJ”) failure to advise him of the

potential availability of discretionary relief under former 8 U.S.C. § 1182(c)

(Immigration and Nationality Act § 212(c)). To establish prejudice, Guzman must

demonstrate that he had “plausible grounds” for discretionary relief from removal.

United States v. Esparza-Ponce, 193 F.3d 1133, 1136–37 (9th Cir. 1999).

      Under procedures in effect at the time of Guzman’s removal proceedings, an


                                           2
IJ determined whether to provide relief under § 212(c) by balancing positive and

negative factors. Yepes-Prado v. INS, 10 F.3d 1363, 1365–66 (9th Cir. 1993).

Positive factors included: “1) family ties within the United States; 2) residence of

long duration in this country (particularly when residence began at a young age); 3)

hardship to the petitioner or petitioner’s family if relief [was] not granted; 4) service

in the United States armed forces; 5) a history of employment; 6) the existence of

business or property ties; 7) evidence of value and service to the community; 8) proof

of rehabilitation if a criminal record exists; 9) other evidence attesting to good

character.” Id. at 1366. Negative factors included the nature of the ground for

deportation, additional violations of the immigration laws, a recent or serious

criminal record, and other evidence of bad character. Id. When a defendant had

committed a serious crime or demonstrated a pattern of serious criminality, he had

to “make a heightened showing that his case present[ed] unusual or outstanding

equities to warrant discretionary relief.” Id.; see United States v. Vasquez-Gonzalez,

901 F.3d 1060, 1069 (9th Cir. 2018).

      Here, Guzman would have had to make this heightened showing because the

succession of his criminal acts, taken together, established a pattern of serious

criminal misconduct. Guzman cited several positive factors warranting § 212(c)

relief, such as his strong family ties within the United States; that his parents brought

him to the United States at a young age; that his removal caused hardship for him


                                           3
and his family; and that he worked various jobs since a young age. But most of the

favorable evidence that Guzman submitted in the district court addressed events that

occurred after he was deported in 1999, which are not relevant to the prejudice

inquiry. Weighing the positive factors against the negative factors, it is not plausible

that the IJ would have found that Guzman’s case presented the “unusual or

outstanding equities” necessary to warrant discretionary relief under § 212(c) given

his extensive criminal history and the lack of evidence of rehabilitation. Guzman

therefore was not prejudiced by the IJ’s failure to advise him about the availability

of potential § 212(c) relief.

      Because Guzman’s 1999 removal order was valid on account of his conviction

for robbery under California Penal Code section 211, an aggravated felony, and he

was not prejudiced by the IJ’s failure to advise him of the potential availability of

discretionary relief, the district court did not err in reinstating Guzman’s conviction

and sentence.

      AFFIRMED.




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