                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 14 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50565

              Plaintiff - Appellee,              D.C. No. 3:11-cr-04190-JLS-1

  v.
                                                 MEMORANDUM*
JUAN MANUEL ALMARAZ-
LUEVANO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                          Submitted November 6, 2013**
                              Pasadena, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.

       Appellant Juan Manuel Almaraz-Luevano timely appeals his conviction

under 8 U.S.C. § 1326 for being a deported alien found in the United States.

Appellant seeks to attack collaterally both of his underlying deportation orders

        *
             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).
upon which his conviction was grounded. Reviewing de novo the district court’s

denial of Appellant’s motion to dismiss the indictment, United States v. Ramos,

623 F.3d 672, 679–80 (9th Cir. 2010), we affirm.

      Appellant fails to show that he was prejudiced by the immigration judge’s

(“IJ”) failure to inform him of the possibility of, then available, relief under §

212(c) because Appellant would not have had “plausible grounds for relief under §

212(c)” had he been informed of, and requested, such relief. United States v.

Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003). Based on the factors upon

which IJs formerly relied in assessing § 212(c) petitions for relief, Yepes-Prado v.

INS, 10 F.3d 1363, 1366 (9th Cir. 1993), Appellant fails to meet the heightened

showing of “outstanding equities,” which would have been required because of

Appellant’s two felony drug convictions. See Ayala-Chavez v. INS, 944 F.2d 638,

641 (9th Cir. 1991). In particular, “the existence, seriousness, and recency of any

criminal record” would have weighed heavily against Appellant’s petition,

especially given the fact that he had been convicted of four crimes in the five years

preceding his 1997 removal proceeding, including three felony convictions, one of

which occurred just weeks before his removal proceeding. Yepes-Prado, 10 F.3d

at 1366. Because we find that Appellant’s 1997 removal order serves as a valid




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underlying basis for his conviction under 8 U.S.C. § 1326, we need not consider

the validity of his 2009 removal order.

      We further affirm the district court’s imposition of the one-year term of

supervised release to follow Appellant’s prison sentence. Appellant argues that the

district court’s imposition of the one-year term of supervised release contravened

the November 1, 2011, amendment to the United States Sentencing Guidelines §

5D1.1, which provides that: “In a case in which the defendant is a deportable alien

. . . and supervised release is not required by statute, the court ordinarily should not

impose a term of supervised release.” U.S.S.G. § 5D1.1 cmt. n.5. However, that

same amendment to the Sentencing Guidelines also provides that: “The court

should . . . consider imposing a term of supervised release on such a defendant if

the court determines it would provide an added measure of deterrence and

protection based on the facts and circumstances of a particular case.” Id. Because

the district court imposed the one-year term of supervised release based on

Appellant’s “criminal history and demonstrated defiance of court orders,” the

district court’s sentence does not constitute an abuse its discretion. See United

States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011).

      AFFIRMED.




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