                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 10 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50205

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-00117-BEN-1
 v.

BLADIMIR MARTINEZ,                               MEMORANDUM*

              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 1, 2016
                               Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and WHYTE,** District
Judge.

      Bladimir Martinez (“Martinez”) appeals his conviction and sentence for

being a removed alien found in the United States in violation of 8 U.S.C. § 1326.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm Martinez’s

conviction.1

1.    The district court did not err in denying Martinez’s motion to dismiss the

information. Martinez moved to dismiss on the ground that his 2012 removal, a

predicate element of the charge against him, was fundamentally unfair. See

8 U.S.C. § 1326(a), (d). To demonstrate fundamental unfairness, Martinez must

show (1) that the removal proceeding violated his due process rights and (2) that he

suffered prejudice as a result. United States v. Reyes-Bonilla, 671 F.3d 1036, 1043

(9th Cir. 2012). We need not decide whether the proceeding violated Martinez’s

due process rights, because he cannot establish prejudice. He was not prejudiced

because there were no “‘plausible grounds’ on which he could have been granted

relief from removal” in 2012. See id. at 1049.

      Because of his 2010 conviction for an aggravated felony, Martinez was

barred from obtaining asylum, withholding of removal, or discretionary forms of

relief. See id. at 1050. The only relief for which he was eligible was deferral of

removal under the Convention Against Torture (“CAT”). See id. To obtain relief,

Martinez would have needed to show that, under the circumstances present in 2012,


      1
         In a concurrently filed opinion, we vacate Martinez’s sentence because the
district court received and answered a question from the jury during deliberations
in violation of Federal Rule of Criminal Procedure 43 and the Sixth Amendment.
                                          2
it was “more likely than not” that he would be tortured upon removal to Guatemala

with the consent or acquiescence of a public official. See 8 C.F.R.

§§ 208.16(c), 208.17(a); Cole v. Holder, 659 F.3d 762, 770–71 (9th Cir. 2011).

      Martinez could not have made that showing in 2012. While Martinez

presents evidence that, before leaving Guatemala in 2005, he received death threats

from fellow gang members for refusing to comply with their demands, these

threats were too vague and remote in time to establish that he was likely to be

tortured upon his return in 2012. Moreover, the record suggests that Martinez

lived in Guatemala without incident for some time after the threats were made.

Therefore, the vague threats could not constitute past torture that would have raised

an inference of future torture. Cf. 8 C.F.R. § 208.18(a)(4)(iii) (stating that torture

encompasses mental harm caused by “[t]he threat of imminent death”); Hoxha v.

Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (holding that unfulfilled threats were

insufficient to establish past persecution for purposes of asylum, which has a lower

standard of proof than for CAT protection).

      Martinez argues that the presence of a partially removed gang tattoo on his

body made it “more likely than not” that he would be tortured upon his return to

Guatemala. However, Martinez’s tattoo is inconspicuous and easily covered by a

shirt. Therefore, it was unlikely to make him a target for attacks. Cf. Andrade v.


                                           3
Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015) (stating that gang tattoos may provide

support for a CAT claim when they are conspicuous). Furthermore, the country

conditions reports Martinez cites describing gang violence in Guatemala do not,

without more, indicate that Martinez himself was likely to be a target of the

violence. See Go v. Holder, 640 F.3d 1047, 1054 (9th Cir. 2011) (stating that

while “country reports contain[ed] generalized evidence suggesting a relatively

high level of mistreatment and abuse” in the country of removal, the “specific

circumstances” of the petitioner’s case did not indicate that he would be harmed or

mistreated).

2.    The district court did not abuse its discretion in denying Martinez’s request

for an evidentiary hearing. Crediting all of Martinez’s evidence, Martinez cannot

establish that his 2012 removal was fundamentally unfair because he cannot show

that any alleged due process violation prejudiced his ability to obtain relief.

Therefore, he was not entitled to an evidentiary hearing. See United States v.

Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980) (“[I]f the affidavits show as a matter of

law that appellant was or was not entitled to relief, no hearing was required.”).

AFFIRMED.




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