                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 31 2012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. 10-50395

               Plaintiff - Appellee,             D.C. No. 3:09-cr-02798-DMS

  v.
                                                 MEMORANDUM *
J. JESUS VEGA-ARROYO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       J. Jesus Vega-Arroyo appeals from the district court’s judgment and

challenges his guilty-plea conviction for attempted entry after deportation, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and




          *
             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).
we affirm.

      Vega-Arroyo contends that the district court erred by denying his motion to

dismiss the indictment. He asserts that his underlying removal order is defective

because his waiver of his right to counsel in the removal proceedings was

ineffective. We review this claim de novo. See United States v. Reyes-Bonilla,

671 F.3d 1036, 1042 (9th Cir.), cert. denied, 133 S. Ct. 322 (2012).

      Vega-Arroyo was required to prove actual prejudice in relation to his claim

of ineffective waiver of his right to counsel, because he had a prior aggravated

felony conviction at the time of the removal proceedings. See id. at 1049. Because

Vega-Arroyo made no attempt to prove actual prejudice, the district court properly

denied his motion to dismiss the indictment.

      AFFIRMED.




                                          2                                   10-50395
