                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              SEP 12 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.    15-30195

              Plaintiff-Appellee,                 D.C. No.
                                                  1:15-cr-02018-LRS-1
 v.

URBANO DE LA CRUZ-VALLES,                         MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                      Argued and Submitted August 30, 2016
                               Seattle, Washington

Before: GOODWIN, SCHROEDER, and McKEOWN, Circuit Judges.

      Urban De La Cruz-Valles, a native and citizen of Mexico, entered a

conditional guilty plea to illegal reentry after deportation in violation of 8 U.S.C.

§ 1326, preserving his right to appeal. He appeals from the district court’s denial

of his motion to dismiss the indictment, the applicable maximum term of

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
imprisonment, and the imposed term of supervised release. We affirm the district

court.

         The district court did not err in denying De La Cruz-Valles’s motion to

dismiss the indictment because De La Cruz-Valles failed to show prejudice from

any alleged due process violation at the deportation hearing. A removal order is

“fundamentally unfair” if: “(1) [defendant’s] due process rights were violated by

defects in his underlying deportation proceeding, and (2) he suffered prejudice as a

result of the defects.” United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th

Cir. 1998), overruled on other grounds as recognized in United States v.

Ballesteros-Ruiz, 319 F.3d 1101, 1105 (9th Cir., 2003).

         De La Cruz-Valles cannot show prejudice as a result of not having counsel

at the deportation hearing because he had no plausible claim for relief from

removal. Based on the lack of positive equities and the violent nature of the

underlying crime, the immigration judge properly denied voluntary departure. See

United States v. Gonzalez-Flores, 804 F.3d 920, 927–28 (9th Cir. 2015).

         The Supreme Court’s decision in Almendarez-Torres v. United States

confirms the district court’s ruling that De La Cruz-Valles’s maximum sentence

was correctly calculated at ten years. See 523 U.S. 224, 239–45 (1998) (holding

that a sentence enhancement based on a prior conviction was not subject to the


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Sixth Amendment requirement for a jury to determine the facts beyond a

reasonable doubt). This court has explicitly held that although Apprendi v. New

Jersey, 530 U.S. 466 (2000), may have questioned the validity of Almendarez-

Torres, the Apprendi court stopped short of overruling Almendarez-Torres. United

States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Thus, we are bound by

Almendarez-Torres until the Supreme Court explicitly overrules it.

      Finally, a district court may impose a term of supervised release for a

deportable alien, despite U.S.S.G. § 5D1.1(c), if the district court articulates “a

specific and particularized explanation that supervised release would provide an

added measure of deterrence and protection based on the facts of [the defendant’s]

case.” United States v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012). The

district court provided a reasoned basis for sentencing De La Cruz-Valles to

supervised release and adequately explained those reasons. The court found that

supervised release would deter De La Cruz-Valles from returning to the United

States, stating that imposing supervised release would be “another impediment . . .

precluding this defendant from returning.” The district court therefore acted within

its discretion by imposing a term of supervised release.

      AFFIRMED.




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