                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 16 2011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. 10-50289

              Plaintiff-Appellee,                D.C. No. 3:09-cr-02686-BEN-1

  v.
                                                 MEMORANDUM *
ALONZO QUINTANILLA-GONZALEZ,

              Defendant-Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted August 30, 2011
                              Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, District
Judge.**

       Alonzo Quintanilla-Gonzalez (“Appellant”) appeals his conviction, after

entry of a conditional guilty plea, under 8 U.S.C. § 1326(a) and (b) for attempted




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
entry after deportation. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Appellant claims that his deportation orders are invalid and therefore may

not serve as the basis for prosecution under 8 U.S.C. § 1326. In order to challenge

the validity of a deportation order, Appellant must demonstrate that: (1) he

exhausted available administrative remedies; (2) he was improperly deprived of the

opportunity for judicial review; and (3) “the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d); see also United States v. Ramos, 623 F.3d 672, 680

(9th Cir. 2010). A removal order is fundamentally unfair if the defendant’s due

process rights were violated and he suffered prejudice as a result of the flawed

proceeding. See Ramos, 623 F.3d at 680 (quoting United States v. Pallares-Galan,

359 F.3d 1088, 1095 (9th Cir. 2004)).

      Appellant was first deported in 2001, after the immigration judge (“IJ”)

erroneously concluded that his battery conviction rendered him an aggravated

felon ineligible for cancellation of removal. In this appeal, the government does

not contest that the 2001 deportation order was invalid. In 2006, Appellant was

deported three separate times pursuant to an administrative removal order and two

different expedited removal orders. See 8 U.S.C. § 1228(b) (setting forth

proceedings that result in an administrative removal); 8 U.S.C. § 1225(b)


                                          2
(providing for procedures referred to as expedited removal). These subsequent

removals provide valid bases for his illegal reentry conviction. See United States

v. Garcia-Martinez, 228 F.3d 956, 964 (9th Cir. 2000) (affirming a section 1326

conviction based on an administrative removal order); United States v.

Barajas-Alvarado, No. 10-50134, 2011 U.S. App. LEXIS 17652, at *1–2 (9th Cir.

Aug. 24, 2011) (affirming a section 1326 conviction based on expedited removal

orders).

      Appellant challenges his 2006 administrative and expedited removal orders

on the grounds that those procedures do not apply to legal permanent residents.

Appellant lost his legal permanent resident status as a result of the invalid 2001

removal. Thus, in considering the validity of his subsequent removals, Appellant

contends that the Court should deem him a permanent resident who was not

properly subject to administrative or expedited removal orders.

      Appellant, however, does not demonstrate that he suffered any prejudice

from the allegedly improper utilization of the administrative or expedited removal

proceedings. In September 2003, Appellant was convicted of inflicting corporal

injury on a spouse or cohabitant under California Penal Code § 273.5(e). He was

initially sentenced to six months in jail and thirty-six months of probation. After

his probation was revoked, he was sentenced to twenty-four months in prison. A


                                          3
violation of section 273.5 represents a categorical crime of violence. See United

States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 2010).

      At oral argument, Appellant for the first time asserted that a violation of

California Penal Code § 273.5 is a “wobbler” offense, in that the sentencing court

has discretion to punish a violation as either a misdemeanor or a felony. As

Appellant was initially sentenced to six months in jail and thirty-six months

probation, he suggests that the offense must be considered a misdemeanor.

Appellant, however, has not established that the six-month jail term was imposed

pursuant to entry of judgment. Rather, the trial court may have suspended

imposition or stayed execution of Appellant’s sentence pending successful

completion of probation. See United States v. Salazar-Mojica, 634 F.3d 1070,

1073 n.4 (9th Cir. 2011) (quoting United States v. Bridgeforth, 441 F.3d 864, 871

(9th Cir. 2006) (explaining that an initial sentence of probation with a jail term of

forty-three days as a condition of probation does not, by itself, represent a

judgment punishing an offense as a misdemeanor). In any case, Appellant has

waived this argument by failing to raise it in his opening brief. See Kumar v.

Gonzales, 444 F.3d 1043, 1056 (9th Cir. 2006) (considering argument not raised in

appellant’s opening brief to be waived).




                                           4
      Accordingly, at the time of his administrative and expedited removal

proceedings in 2006, Appellant was an aggravated felon. Even if he were subject

to consideration as a legal permanent resident, he would have been ineligible for

discretionary relief. See 8 U.S.C. § 1229b(a) (providing for cancellation of

removal of certain permanent residents who have not been convicted of an

aggravated felony). Therefore, even if, as Appellant contends, use of these

procedures were considered improper, he suffered no prejudice.

      AFFIRMED.




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