                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                           FOR THE NINTH CIRCUIT
                                                                            JUN 16 2017
UNITED STATES OF AMERICA,                        No. 15-50441           MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Plaintiff-Appellee,                D.C. No.
                                                 2:14-cr-00739-RGK-1
 v.

JUAN MANUEL MARTINEZ                             MEMORANDUM*
GONZALEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                             Submitted June 6, 2017**
                               Pasadena, California

Before: GRABER, SACK,*** and MURGUIA, 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 that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Robert D. Sack, United States Circuit Judge for the Court
of Appeals for the Second Circuit, sitting by designation.
      Defendant Juan Manuel Martinez Gonzalez appeals his conviction for illegal

reentry, in violation of 8 U.S.C. § 1326, and challenges his 51-month sentence.

We affirm.

      1. As the government concedes, the 2013 expedited removal proceedings

violated Defendant’s due process rights because he received the Notice of Intent to

Issue a Final Administrative Removal Order at about the same time as the Final

Administrative Removal Order, thus depriving him of the 10-day rebuttal period

provided by 8 C.F.R. § 238.1(b)(2)(i). But, for his due process argument to

succeed, Defendant must show prejudice. United States v. Valdez-Novoa, 780

F.3d 906, 914 (9th Cir. 2015). Contrary to his argument, Immigration and

Customs Enforcement did not act ultra vires; it had the authority to enter a Final

Administrative Removal Order, but simply failed to follow the proper procedure.

In that circumstance, Defendant still must show prejudice. See Kohli v. Gonzales,

473 F.3d 1061, 1069 (9th Cir. 2007) (noting that, to argue successfully that an

alleged defect in notice compromised the immigration court’s jurisdiction, the

petitioner had to show an effect on her rights). Defendant suffered no prejudice

because his conviction of California Penal Code § 245(a)(1) was categorically a

"crime of violence" under 18 U.S.C. § 16(a) and, therefore, an "aggravated felony"

for immigration purposes. 8 U.S.C. § 1101(a)(43)(F); United States v. Jimenez-


                                          2
Arzate, 781 F.3d 1062, 1065 (9th Cir. 2015) (per curiam). Thus, he had no

effective rebuttal to offer.

       2. The district court’s limitation on cross-examination of Officer Sarte

concerning Agent Doe’s disciplinary history was not an abuse of discretion. See

United States v. Fryberg, 854 F.3d 1126, 1131 (9th Cir. 2017) (discussing standard

of review). Even if the ruling was erroneous, any error did not materially affect the

verdict. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.

2005) (discussing harmlessness). Agent Doe’s disciplinary history was not

particularly probative on the issue of his accuracy or truthfulness, and significant

other evidence corroborated Agent Doe’s statement that Defendant was not a

United States citizen. Among other things, Defendant’s birth certificate showed

that he was born in Mexico, he listed his nationality as "Mexican" on two detainee

request forms, and he referred to Mexico as "my country." Because the excluded

evidence was only minimally probative, and because Defendant had other means to

try to show that he was a United States citizen, the court’s ruling did not deprive

Defendant of his right to present a defense.

       3. Because Defendant failed to challenge the procedural reasonableness of

his sentence at the district court, we review only for plain error. United States v.

Doe, 705 F.3d 1134, 1153 (9th Cir. 2013). The record shows that the sentencing


                                           3
court correctly calculated the Guidelines range and that the court considered and

responded to Defendant’s arguments. The district court’s explanation of the

sentence imposed was not plainly erroneous.

      4. Finally, Defendant argues that his sentence is substantively unreasonable

because the Sentencing Commission later reduced the applicable Guidelines range

for Defendant’s crime. Notwithstanding the subsequent revision, the question for

us is whether the court abused its discretion in light of the facts in the record

bearing on the statutory sentencing factors. United States v. Autery, 555 F.3d 864,

871–73 (9th Cir. 2009). We find no abuse of discretion, in light of the reasons the

court gave for the sentence selected and in light of its departure downward for

cultural assimilation.

      AFFIRMED.




                                            4
