                     FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 13-50369
                 Plaintiff-Appellee,
                                                      D.C . No.
                      v.                           3:12-cr-04471-
                                                       BTM-1
 GUSTAVO GARCIA-GONZALEZ,
             Defendant-Appellant.                     OPINION


        Appeal from the United States District Court
            for the Southern District of California
        Barry T. Moskowitz, District Judge, Presiding

                         Submitted
            March 3, 2015*—Pasadena, California

                           Filed July 1, 2015

       Before: Michael R. Murphy,** Ronald M. Gould,
           and Richard C. Tallman, Circuit Judges.

                   Opinion by Judge Murphy



  *
    The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
 **
    The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
2            UNITED STATES V. GARCIA-GONZALEZ

                           SUMMARY***


                           Criminal Law

    The panel affirmed a conviction for being a previously
removed alien illegally found in the United States in violation
of 8 U.S.C. § 1326(a).

    The panel held that the district court correctly denied the
defendant’s motion to dismiss the indictment, where even
assuming the existence of a due process violation in the
underlying expedited removal proceeding, the defendant
failed to demonstrate that relief in the form of withdrawal of
application for admission was plausible and thus failed to
carry his burden of demonstrating prejudice.

   The panel held that the district court did not err in
denying the defendant’s motion to compel the government to
produce statistics about the numbers of individuals with a
background similar to his who were granted withdrawal of
application of admission, where the statistics the defendant
sought are not presently available and cannot be accurately
compiled even with the expenditure of significant resources.




  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. GARCIA-GONZALEZ                              3

                              COUNSEL

Kara Hartzler, Federal Public Defender of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; and Anne Kristina Perry, Assistant United
States Attorney, San Diego, California, for Plaintiff-Appellee.


                               OPINION

MURPHY, Circuit Judge:

                       I. INTRODUCTION

    A grand jury indicted Gustavo Garcia-Gonzalez1 on one
count of being a previously removed alien illegally found in
the United States, in violation of 8 U.S.C. § 1326(a). Garcia
moved the district court to dismiss the indictment, arguing the
prior removal upon which it was based was fundamentally
unfair. See id. § 1326(d). The district court denied the
motion; Garcia entered a conditional guilty plea preserving
his right to challenge that decision on appeal. See Fed. R.
Crim. P. 11(a)(2). Garcia asserts the district court erred in
two particulars: (1) in concluding he failed to demonstrate his




 1
   In their district court filings and briefs on appeal, the parties refer to
Garcia-Gonzalez as Garcia. This opinion uses the same nomenclature.
4           UNITED STATES V. GARCIA-GONZALEZ

expedited removal in 20122 was fundamentally unfair; and
(2) in refusing to order the government to produce statistics
about the numbers of individuals with a background similar
to his who were granted a form of discretionary relief
available in expedited removal proceedings, i.e., withdrawal
of application for admission. See 8 U.S.C. § 1225(a)(4) (“An
alien applying for admission may, in the discretion of the
Attorney General . . . , be permitted to withdraw the
application for admission and depart immediately from the
United States.”); 8 C.F.R. § 1235.4 (providing Attorney
General with discretion to allow an “alien applicant for
admission to withdraw his or her application for admission in
lieu of . . . expedited removal”).

   Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this
court affirms the district court’s judgment of conviction.
Garcia failed to demonstrate his 2012 expedited removal was
fundamentally unfair. Furthermore, the statistics Garcia
sought are not presently available and can not be accurately
compiled even with the expenditure of significant resources.

                       II. BACKGROUND

A. General Legal Background

   It is a crime for an alien who has been removed from the
United States to “enter[], attempt[] to enter, or . . . at any time

    2
    Garcia was removed from the United States in 2003 and 2012. The
district court found reason to doubt the fundamental fairness of the 2003
removal, but declined to resolve the issue because it concluded the 2012
expedited removal was valid. On appeal, the government disclaims any
reliance on the 2003 removal as a basis to support Garcia’s § 1326
conviction. Thus, the only issue before the court is the validity of the
2012 expedited removal.
          UNITED STATES V. GARCIA-GONZALEZ                  5

[be] found in” the United States without the express consent
of the Attorney General. 8 U.S.C. § 1326(a). A prior
removal “must be valid, legal, and comport with due process
requirements to sustain a conviction under Section 1326.”
United States v. Lopez, 762 F.3d 852, 858 (9th Cir. 2014).
Section 1326 sets out three requirements a defendant must
satisfy to challenge the validity of a prior removal order.
8 U.S.C. § 1326(d). The only requirement at issue in this
case is the requirement that a defendant demonstrate the entry
of a prior removal order was “fundamentally unfair.” Id.
§ 1326(d)(3).

     “[A] predicate removal order satisfies the condition of
being fundamentally unfair for purposes of § 1326(d)(3)
when the deportation proceeding violated the alien’s due
process rights and the alien suffered prejudice as a result.”
United States v. Barajas-Alvarado, 655 F.3d 1077, 1085 (9th
Cir. 2011) (quotations omitted). Garcia’s predicate removal
was an expedited removal at the border. The Constitution
does not entitle “non-admitted aliens” to “any procedure vis-
à-vis their admission or exclusion.” Id. at 1084. “Whatever
the procedure authorized by Congress is, it is due process as
far as an alien denied entry is concerned.” United States ex
rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950). Thus,
the regularity of Garcia’s expedited removal proceeding is
judged solely by the procedures set out in 8 U.S.C. § 1225(b)
and 8 C.F.R. § 1235.3(b).

   To demonstrate prejudice from a due process violation,
Garcia must show that, absent the violation, it was plausible
he would have obtained discretionary relief from removal.
United States v. Raya-Vaca, 771 F.3d 1195, 1206 (9th Cir.
2014). The only form of discretionary relief available in
expedited removal proceedings is withdrawal of application
6                UNITED STATES V. GARCIA-GONZALEZ

for admission. 8 C.F.R. § 1235.4. In analyzing the
plausibility of that form of discretionary relief, this court
looks “for guidance to the Inspector’s Field Manual, an
internal agency document that counsels immigration officers
as to when to grant withdrawal of application for admission.”
Raya-Vaca, 771 F.3d at 1206–07.3

B. Factual Background

    Garcia was born in Mexico. In 1989, at the age of eight,
he was brought to the United States by his parents. He
sporadically attended school in the United States, but never
graduated from high school. Garcia has two children with
Margarita Flores: Isabel Garcia and Anne Garcia. Anne
Garcia has Down Syndrome. He has three children with his
current partner Elva Rodriguez. The ages of his children do
not appear in the record.



    3
        As this court has noted,

             [t]he Inspector’s Field Manual provides for a highly
             individualized determination and instructs officers to
             consider all facts and circumstances related to the case
             to determine whether permitting withdrawal would be
             in the best interest of justice. The Manual also
             enumerates six factors relevant to the question of relief:
             (1) the seriousness of the immigration violation;
             (2) previous findings of inadmissibility against the
             alien; (3) intent on the part of the alien to violate the
             law; (4) ability to easily overcome the ground of
             inadmissibility; (5) age or poor health of the alien; and
             (6) other humanitarian or public interest considerations.

United States v. Raya-Vaca, 771 F.3d 1195, 1207 (9th Cir. 2014)
(quotations and citations omitted).
             UNITED STATES V. GARCIA-GONZALEZ                           7

    Sometime prior to 2002, Garcia’s father, then a permanent
legal resident of the United States, filed an I-130 petition to
adjust Garcia’s status. In 2006, after Garcia’s father had
become a United States citizen, the I-130 was approved.
Garcia’s priority date was reached in June 2007.4

    In 2002, Garcia was convicted of, inter alia, possession
of cocaine, in violation of Cal. Health & Safety Code
§ 11350(a). Since 2006, Garcia has had several additional
criminal convictions. Although all these convictions were
misdemeanors, they include serious offenses (i.e., driving
under the influence of alcohol/drugs, possession of narcotics
paraphernalia, and using or being under the influence of a
controlled substance).

    In 2003, Garcia was removed from the United States
following proceedings before an Immigration Judge. See
supra n.2 (noting the government has conceded this removal
proceeding was not fundamentally fair). On September 11,
2012, Garcia attempted to enter the United States through the
San Ysidro Port of Entry. He presented a Washington state
birth certificate that belonged to someone else. That same
day, he was ordered removed from the United States via
expedited removal. See 8 U.S.C. § 1225(b). The validity of
Garcia’s instant § 1326 conviction turns on whether he has
carried his burden of demonstrating this expedited removal
was fundamentally unfair.




  4
    The reaching of Garcia’s priority date did not grant him a visa; it
merely allowed him to file a visa application. The ultimate success of his
visa application was contingent on him demonstrating admissibility. See
generally Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2198 (2014).
8         UNITED STATES V. GARCIA-GONZALEZ

C. Procedural Background

    Nine days after his expedited removal, officers found
Garcia in the United States near the Calexico Port of Entry.
A grand jury indicted Garcia on one count of illegal reentry.
Garcia filed a motion to dismiss, asserting his 2012 expedited
removal failed to comply with statutory and regulatory
requirements in three ways: (1) the examining officer failed
to comply with 8 C.F.R. § 1235.3(b)(2)(i) by not presenting
for his review and signature Forms I-860 and I-867AB; (2) he
was never informed withdrawal of application for admission
was available in lieu of expedited removal; and (3) the
examining officer mistakenly thought his 2003 removal was
based on an aggravated felony. Garcia asserted these alleged
due process violations prejudiced him because, absent the
violations, he stood a good chance of being permitted to
withdraw his application for admission. According to Garcia:
(1) his attempt to enter the United States using false
documents is not a serious immigration violation; (2) the
pending visa request by his father, which achieved a priority
date by the time of his expedited removal, overcame any
ground of inadmissibility; (3) humanitarian factors—
including his father’s advanced age and his care for his
daughter with Down Syndrome—further supported the
plausibility of a grant of discretionary relief; and (4) as of
2004, almost 70% of aliens determined to be inadmissible
were allowed to withdraw their applications for admission
and that another individual who attempted to enter with false
citizenship documents, to which he was similarly situated,
had been allowed to withdraw his application. The district
court denied Garcia’s motion to dismiss in a comprehensive
written order.
          UNITED STATES V. GARCIA-GONZALEZ                  9

                     III. ANALYSIS

A. Validity of 2012 Expedited Removal

   1. Standard of Review

    This court reviews de novo a “denial of a motion to
dismiss an indictment under 8 U.S.C. § 1326 when the
motion is based on an alleged deprivation of due process in
the underlying removal proceedings. The district court’s
factual findings are reviewed for clear error.” United States
v. Valdavinos-Torres, 704 F.3d 679, 685 (9th Cir. 2012)
(citations and quotation omitted).

   2. Discussion

       a. Due Process Violation

    The government does not contest the assertion that
Garcia’s 2012 expedited removal proceeding failed to comply
with the applicable regulation.             See 8 C.F.R.
§ 1235.3(b)(2)(i). Thus, like the district court, we assume
Garcia has established a due process violation and move on
to consider the question of prejudice.

       b. Prejudice

    Garcia failed to demonstrate that, absent the assumed due
process violation, it was plausible he would have been
granted withdrawal of his application for admission in lieu of
his 2012 expedited removal. This case is factually and
legally indistinguishable from Barajas-Alvarado, 655 F.3d at
1079. As was the case in Barajas-Alvarado, Garcia
attempted to enter the United States with false documents of
10         UNITED STATES V. GARCIA-GONZALEZ

citizenship. Barajas-Alvarado concluded such conduct had
a “disqualifying effect” given the Field Manual’s focus on
“obvious, deliberate fraud on the part of the applicant.”
655 F.3d at 1091 (quoting Inspector’s Field Manual § 17.2).
Thus, the first and third factors from the Field Manual weigh
strongly against discretionary relief. Id. at 1090–91; see also
Raya-Vaca 771 F.3d at 1210 (collecting cases for proposition
that deliberate fraud during an attempted entry “renders relief
implausible”).

    The remaining factors also weigh against granting relief.
Without regard to whether it would support a § 1326
conviction, Garcia’s removal in 2003 means the second factor
from the Field Manual weighs against the availability of
discretionary relief. Barajas-Alvarado, 655 F.3d at 1090
(noting prior findings of inadmissibility weigh against
granting withdrawal of application for admission). The
fourth factor—ability to overcome grounds for
inadmissability—also weighs against the grant of
discretionary relief. Garcia’s California state conviction for
possession of cocaine rendered him inadmissible and
rendered his father’s petition for adjustment of status
irrelevant. Garcia, quite correctly, does not contest this
conclusion. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing
that a conviction for violating any state or federal law or
regulation “relating to a controlled substance” renders an
alien inadmissible); id. § 1255(a)(2) (providing that an alien
must be admissible at the time he seeks adjustment of status).
The record also reveals Garcia has continued to engage in
criminal conduct, including drug-related conduct, while
residing illegally in the United States. There is no indication
in the record Garcia is old or in poor health and the district
court found that Garcia’s alleged provision of care to his
disabled daughter was not borne out by the record. Thus, the
           UNITED STATES V. GARCIA-GONZALEZ                  11

fifth and sixth factors from the Field Manual also weigh
against discretionary relief. Barajas-Alvarado, 655 F.3d at
1090–91.

    None of the factors set out in the Field Manual support
the grant of discretionary relief. Garcia nevertheless argues
he is entitled to relief because he has identified one similarly
situated individual, “Gonzalez,” who was allowed to
withdraw his application for admission. This assertion, too,
is foreclosed by Barajas-Alvarado, 655 F.3d at 1079. The
relevant immigration documents provide no information at all
as to why Gonzalez was allowed to withdraw his application
for admission.         Barajas-Alvarado makes clear such
comparisons offer no help to an alien attempting to
demonstrate discretionary relief is plausible. 655 F.3d at
1091 n.17. The mere fact that a few other aliens in a position
arguably similar to Garcia’s position were allowed (for
reasons unknown) to withdraw their applications for
admission establishes nothing more than relief in that
situation is possible. “[E]stablishing plausibility[, however,]
requires more than establishing a mere possibility.” Id. at
1089 (quotations omitted).

       c. Conclusion

    Even assuming the existence of a due process violation,
Garcia has failed to carry his burden of demonstrating
prejudice flowing from such violation. In particular, he has
failed to demonstrate that absent such violation, relief in the
form of withdrawal of application of admission was plausible.
Thus, the district court correctly denied Garcia’s motion to
dismiss.
12          UNITED STATES V. GARCIA-GONZALEZ

B. Motion to Compel

     1. Standard of Review

    This court reviews de novo challenges to a conviction
based on Brady v. Maryland, 373 U.S. 83 (1963). United
States v. Smith, 282 F.3d 758, 770 (9th Cir. 2002). This court
also conducts de novo review of a district court’s
interpretation of the Federal Rules of Criminal Procedure.
United States v. Fort, 472 F.3d 1106, 1109 (9th Cir. 2007).

     2. Discussion

    Garcia served upon the United States a subpoena ordering
it to produce “[a]ny statistics as to whether persons
committing fraud are or are not receiving withdrawal of
application for admission.”5 When the government did not
comply with the subpoena, Garcia moved to compel. At the
hearing on the motion to compel, the government contended
no such statistics exist. In support of this assertion, the
government presented the testimony of Johnny Armijo, the
Assistant Director for Border Security at the San Diego Field
Office. Armijo testified as follows:

            Q. And to the best of your knowledge, is
        there a database existing that could be
        accessed telling us how many people have
        been allowed to withdraw their applications
        for admission who had first come in with
        fraudulent documents?



  5
    The parties’ Joint Motion to Supplement the Record on Appeal with
the subpoena is GRANTED.
          UNITED STATES V. GARCIA-GONZALEZ                13

           A. No, we don’t have that capability.

           Q. What would it require you to do?

           A. We would have to manually search
       every case, and review the fact patterns
       surrounding each one of those cases to
       determine that answer.

           Q. So, to the best of your knowledge,
       there are no actual statistics as to the number
       of people in the Southern District of
       California in a given time frame who came in,
       had false docs, and then were allowed to
       withdraw their application?

           A. No, we don’t record that.

Based on this testimony, the district court found (1) the
Brady/discovery material Garcia sought from the government
did not exist; and (2) the government could not produce
accurate statistics of the type sought by Garcia even through
the expenditure of significant resources.

          THE COURT: Well, but the problem is
       you want them to do research to try to
       generate Brady material that doesn’t exist.

          The Brady material doesn’t exist. If there
       were statistics that could help your case, you
       would be entitled to it.
14      UNITED STATES V. GARCIA-GONZALEZ

         But what you want them to do is to devise
     a program, a research method, to try to figure
     out how to get these statistics.

         [Armijo] testified the statistics don’t exist.
     I find him to be credible. You’ve offered
     nothing to the contrary.

         So I think they—you have asked for any
     statistics as to whether persons committing
     fraud are or are not receiving withdrawal of
     application for admission.

         [Armijo] testified that the statistics don’t
     exist, presently exist.

         I don’t believe under Brady that they are
     obligated to do a statistical research to see if
     they can come up with something that would
     help your case, especially in the light of that
     you can’t offer more than one random
     situation [Gonzalez] where they allowed the
     fellow to withdraw.

        I mean, there is nothing more that runs
     against the field manual. There is no pattern
     shown. There is just one spurious example.
     That’s all we have.

          And I’m not going to require the
     government to drop whatever they’re doing
     and spend time and effort to do research to see
     if somehow they can figure out something that
     may somewhere be relevant in this case.
             UNITED STATES V. GARCIA-GONZALEZ                         15

             The statistics don’t exist. They can’t
         quickly get them. They would have to look at
         every case. And plus the other problem here
         is you don’t know the grounds.

             As Mr. Armijo said, they may have just
         put that he has no basis for entry. Even if
         there was fraud, they may have not specified
         fraud, so you don’t know.

             We’re not going to really get really good
         statistics because there is no specific control
         over the situation.         So we are just
         going—we’re not getting anywhere with this.

             So I think that’s it. Unless you have
         something else to offer, I’m going to find that
         the government has not failed to comply with
         the subpoena because what is called for under
         the subpoena doesn’t presently exist.

    Despite these specific findings on the part of the district
court,6 Garcia asserts the district court erred when it
concluded that the government’s failure to turn over the
requested statistics did not violate Brady and Federal Rules
of Criminal Procedure 16 and 17. But see Sanchez v. United
States, 50 F.3d 1448, 1453 (9th Cir. 1995) (“The government
has no obligation to produce information which it does not


  6
    This court has not resolved how much deference must be afforded a
district court’s factual findings in the context of a Brady challenge.
United States v. Price, 566 F.3d 900, 907 n.6 (9th Cir. 2009). Given that
Garcia failed to adduce any evidence as to the existence of the statistics
he seeks, it is unnecessary to resolve this issue. See id.
16         UNITED STATES V. GARCIA-GONZALEZ

possess or of which it is unaware.”); Fed. R. Crim. P.
16(a)(1)(E) (obligating government to allow defendant to
inspect a certain subset of items “within the government’s
possession, custody, or control”). He asserts he satisfied his
“initial burden of producing some evidence to support an
inference that the government possessed or knew about
material favorable to the defense and failed to disclose it.”
United States v. Price, 566 F.3d 900, 910 (9th Cir. 2009).
The burden, he therefore asserts, shifted to the government to
prove no such material existed. See id. He further asserts the
government failed to satisfy this burden because it produced
the testimony of Armijo, rather than someone more familiar
with the capacities of the information technology databases
at the Department of Homeland Security.

    Garcia’s arguments are not persuasive. Garcia never
presented any evidence in the district court. The only
testimony presented at the hearing on the motion to compel
was that of Armijo, the government’s witness. At that
hearing, Garcia never challenged Armijo’s qualifications to
testify. Garcia now asserts his cross-examination of Armijo
developed evidence sufficient to meet his initial burden to
create an inference the statistics exist, but that Armijo’s
remaining testimony was insufficient to satisfy the
government’s burden of proving they do not exist. Garcia
cannot have it both ways. Either Armijo was not a proper
witness to testify as to the existence of the requested
statistics, which means no evidence was presented at the
hearing to satisfy his initial burden, or he was a proper
witness, which means his categorical denial of the existence
of such statistics satisfies the government’s burden.

   In any event, it is simply not reasonable to assert that any
component of Armijo’s testimony supports in any way the
           UNITED STATES V. GARCIA-GONZALEZ                  17

existence of statistics (reliable or not) as to the number of
persons attempting to enter the country with false documents
that have been granted discretionary relief. Instead, as set out
above, Armijo categorically denied the existence of any such
relevant statistics and specifically testified that producing
accurate statistics of the type sought by Garcia was not
possible, even with the expenditure of significant resources.
That was so because the information Garcia sought was not
routinely recorded on the relevant immigration forms. The
district court found Armijo’s testimony to be credible, and
there is absolutely nothing in the record that would cast doubt
on that credibility determination.

    Because Garcia has not produced any evidence indicating
the statistics he seeks exist, or can be accurately and easily
created, his arguments based on Brady and Federal Rules of
Criminal Procedure 16 and 17 fail.

                    IV. CONCLUSION

    For those reasons set out above, the judgment of
conviction entered by the district court in this case is hereby
affirmed.
