                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 15 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50136

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00410-PSG-1

  v.
                                                 MEMORANDUM*
EDUARDO SANCHEZ-CALDERON,
AKA Eduardo Sanchez Calderon, AKA
Eduardo Gomez, AKA Rick Gomez, AKA
Ricardo Lopez, AKA Ricardo Gomez
Lopez, AKA Ricardo Sanchez,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                             Submitted June 7, 2011**
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***

      Because Sanchez-Calderon’s motion to withdraw his guilty plea to the

§ 1326(a) violation was based on a claim of “[e]rroneous or inadequate legal

advice” regarding the possibility of a collateral attack on his 1994 deportation order,

there was no requirement that he cite a “reason for withdrawing the plea that did not

exist when the defendant entered his plea,” just that he show that this advice could

“plausibly . . . have motivated his decision to plead guilty.” United States v.

McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008) (internal quotation marks omitted).

But while the district court applied the wrong legal standard in considering

Sanchez-Calderon’s motion, any error is harmless because Sanchez-Calderon’s

2006 deportation order, which he admitted and does not challenge on appeal,

provided a separate basis for the § 1326 prosecution at issue, and a reasonable

person with no defense to one of the deportation orders underlying his criminal

prosecution would have pled guilty regardless of the invalidity of an earlier,

separate deportation proceeding. See United States v. Mayweather, 634 F.3d 498,

504–05 (9th Cir. 2010).

      AFFIRMED.

        ***
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.

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