                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 09 2012

                                                                        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. 10-50440

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00033-LAB-1

  v.
                                                 MEMORANDUM *
ADRIAN PENA-ROBLES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                 Argued December 6, 2011 Submitted May 7, 2012
                             Pasadena, California

Before:        PREGERSON and MURGUIA, Circuit Judges, and CONLON,
               District Judge.**

       Adrian Pena-Robles appeals his conviction and 36-month sentence for

attempted entry into the United States after deportation. 8 U.S.C. § 1326(a), (b).

He argues the district court erred in denying his motion to dismiss the § 1326

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
indictment on grounds that his previous removal order was the result of an

expedited removal proceeding that violated his right to due process. Specifically,

he contends that he did not validly waive his right to an attorney in connection with

the removal proceedings. He claims prejudice because an attorney could have

challenged whether the state attempted murder conviction underlying his expedited

removal was an aggravated felony. In addition, Pena-Robles challenges his

sentence. We deferred submission of the case pending resolution of United States

v. Borbon, No. 10-50272, United States v. Contreras-Lopez, No. 10-50238, and

United States v. Reyes-Bonilla, No. 10-50361. These cases have now been

decided.

      We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s denial of the motion to dismiss the indictment. United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We review de novo

whether a prior conviction is a “crime of violence” under U.S.S.G. § 2L1.2.

United States v. Bolanos-Hernandez, 492 F.3d 1140, 1141 (9th Cir. 2007).

      Pena-Robles may collaterally attack the validity of the underlying removal

order because a prior removal is an element of the § 1326 offense. 8 U.S.C.

§ 1326(d); United States v. Mendoza-Lopez, 481 U.S. 828, 837–38 (1987). To

collaterally attack his previous removal order, Pena-Robles must establish that he


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was actually prejudiced by the denial of counsel. United States v. Reyes-Bonilla,

671 F.3d 1036, 1049 (9th Cir. 2012) (to establish the “fundamental unfairness”

required for a collateral attack under § 1326(d), actual prejudice must be shown).

      We assume, without deciding, that Pena-Robles has established a due

process violation for purposes of this appeal. However, no actual prejudice

occurred because he cannot show plausible grounds on which relief from removal

could have been granted. See Reyes-Bonilla, 671 F.3d at 1049. The district court

correctly concluded that Pena-Robles’ attempted murder state conviction is an

aggravated felony. 8 U.S.C. § 1101(a)(43)(F), (U). Oregon’s murder statute falls

under § 1101(a)(43)(F) as a crime of violence because it presents a substantial risk

that physical force against a person will be used while committing the offense. 18

U.S.C. § 16(b) (defining crime of violence); Leocal v. Ashcroft, 543 U.S. 1,

382–83 & n.7 (2004). Although there may be ways in which a death is caused

without the use of force, in the typical case, force is involved. The Oregon attempt

statute, ORS § 161.405, falls under § 1101(a)(43)(U) because it is coextensive with

the generic attempt offense. See United States v. Sarbia, 367 F.3d 1079, 1086 (9th

Cir. 2004) (defining generic attempt). The text of the definitions are the same, and

there is no operational difference in their application. The cases Pena-Robles

identifies, State v. Walters, 804 P.2d 1164 (Or. 1991), and Walters v. Maass, 45


                                          3                                    10-50440
F.3d 1355 (9th Cir. 1995), present differing views on what acts are “strongly

corroborative” of an intent to rape and sodomize a minor, but they apply the same

law. See State v. Rinkin, 917 P.2d 1035, 1041 (Or. Ct. App. 1996) (“Thus, Maass

and Walters apply the same standard to the same evidence and reach different

results on the central issue of whether Walters’ conduct was sufficiently

corroborative of the charged criminal purpose.”).

      Conviction of an aggravated felony with a sentence of more than five years

rendered Pena-Robles ineligible for voluntary departure, asylum, and withholding

of removal. 8 U.S.C. §§ 1158(b)(2), 1229c(a)(1), 1231(b)(3). Nor has Pena-

Robles identified a plausible basis for deferral of removal under the Convention

Against Torture, the only relief from removal remaining to him. 8 C.F.R.

§ 1208.17(a).

      Pena-Robles challenges the district court’s 16-level enhancement of his

guideline offense level due to his prior conviction of a crime of violence under

U.S.S.G. § 2L1.2. The district court did not err. Attempted murder is an

enumerated crime of violence under the federal sentencing guidelines. U.S.S.G.

§ 2L1.2 cmt. note 1(B)(iii), 5. Oregon’s definition of attempted murder is

coextensive with the federal generic definition.

      AFFIRMED.


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