                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 24 2012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. 11-10321

              Plaintiff - Appellee,              D.C. No. 5:09-cr-00431-RMW-1

  v.
                                                 MEMORANDUM *
EUDORO RODRIGUEZ-CHACON,

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                             Submitted May 18, 2012 **
                              San Francisco, California

Before: CLIFTON and N.R. SMITH, Circuit Judges, and SELNA, District
Judge.***




        *
             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).
        ***
            The Honorable James V. Selna, District Judge for the U.S. District
Court for Central California, sitting by designation.
      Eudoro Rodriguez-Chacon (“Rodriguez”) appeals his jury conviction and

sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. We

have jurisdiction under 28 U.S.C. § 1291 and we affirm his conviction.

1.    In order to prevail on a collateral attack of an underlying deportation

proceeding, Rodriguez must demonstrate: “(1) that he exhausted all administrative

remedies available to him to appeal his removal order, (2) that the underlying

removal proceedings at which the order was issued improperly deprived [him] of

the opportunity for judicial review and (3) that the entry of the order was

fundamentally unfair.” United States v. Melendez-Castro, 671 F.3d 950, 953 (9th

Cir. 2012) (alteration in original) (internal quotation marks omitted); 8 U.S.C.

§ 1326(d). A removal order is “‘fundamentally unfair’ if: ‘(1) a defendant’s due

process rights were violated by defects in his underlying deportation proceeding,

and (2) he suffered prejudice as a result of the defects.’” United States v.

Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (alteration omitted)

(quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)).

      Nothing in the underlying deportation proceedings improperly deprived

Rodriguez of the opportunity for judicial review. See Melendez-Castro, 671 F.3d

at 954 (“The Due Process Clause of the Fifth Amendment requires that an alien in

immigration proceedings be ‘made aware that he has a right to seek relief’ so that


                                           2
he has ‘a meaningful opportunity to appeal the fact that he was not advised of that

right.’” (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). In

the immigration proceeding, Rodriguez never suggested that he had any fear of

returning to Mexico. Therefore, the immigration judge was not aware of any relief

that may have been available to Rodriguez. See United States v. Moriel-Luna, 585

F.3d 1191, 1197 (9th Cir. 2009). Further, Rodriguez’s physical or behavioral

characteristics did not demonstrate (and therefore did not alert the immigration

judge) that Rodriguez was a member of a particular social group.

      Even assuming that the immigration judge should have informed Rodriguez

that he may be eligible for withholding of removal (therefore violating his due

process rights), Rodriguez was not prejudiced. See United States v.

Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir. 1999). The record does not support

a finding that persons such as Rodriguez would constitute a particular social group.

2.     The district court recognized that it had discretion to apply a downward

departure or variance on the 16-level enhancement. See United States v.

Ayala–Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011). Although the district court

noted that the enhancement was harsh, it also found the enhancement appropriate

and did not find it necessary to reduce the sentence because of the enhancement.

Instead, it reduced the sentence based upon Rodriguez’s mental condition and


                                          3
cultural assimilation. Based upon the totality of the circumstances, Rodriguez’s

seventy-two month sentence (well below the applicable 100 to 125 month

Guidelines range) was reasonable. See United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008).

      AFFIRMED.




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