                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             FEB 10 2014

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

UNITED STATES OF AMERICA,                       No. 12-50580

              Plaintiff - Appellee,             D.C. No. 3:12-cr-01059-DMS-1

  v.
                                                MEMORANDUM*
LUIS ENRIQUE GALVAN-AGUILAR,

              Defendant - Appellant.


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

                           Submitted February 6, 2014**
                              Pasadena, California

Before: SILVERMAN and HURWITZ, Circuit Judges, and VINSON***, District
Judge.



       *
        This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
       **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
       ***
          Honorable C. Roger Vinson, United States District Judge for the Northern
District of Florida, sitting by designation.
                                          1
      The defendant, Luis Enrique Galvan-Aguilar, appeals his conviction for

being a deported alien found in the United States in violation of Title 8, United

States Code, Section 1326(a). The prosecution was based on Galvan-Aguilar’s

removal in September 2011, which was based on reinstatement of an April 2009

expedited removal order under Title 8, United States Code, Section 1225. Galvan-

Aguilar moved to dismiss the indictment on the grounds that his due process rights

had been violated during the previous expedited removal proceedings as he had not

been advised of (and thus he did not waive) his right to counsel. The district court

denied his motion by oral order, stating that United States v. Barajas-Alvarado,

655 F.3d 1077, 1088 (9th Cir. 2011), “controls and is on all fours in this case.”

Galvan-Aguilar subsequently entered a conditional plea of guilty and filed this

appeal.

      Galvan-Aguilar contends on appeal, as he did in the district court, that his

due process rights were violated inasmuch as he was not informed of his right to

counsel during the expedited removal proceeding. As the district court correctly

observed, however, and as Galvan-Aguilar all but concedes in his opening brief,

this argument is indeed controlled by Barajas-Alvarado:

             Barajas–Alvarado’s claim that he was denied his right to
             counsel [in his prior Section 1225 expedited removal
             proceeding] is meritless on its face. Barajas-Alvarado


                                          2
             himself identifies no legal basis for his claim that non-
             admitted aliens who have not entered the United States
             have a right to representation, and we are aware of no
             applicable statute or regulation indicating that such aliens
             have any such right . . . . Because non-admitted aliens are
             entitled only to whatever process Congress provides,
             Barajas–Alvarado’s lack of representation in the removal
             proceeding did not constitute a procedural error at all, let
             alone a due process violation.

655 F.3d at 1088 (internal citations omitted).1

      Galvan-Aguilar further contends (for the first time on appeal) that he was

denied due process specifically because he was not informed of his right to seek

withdrawal of his application for admission as discretionary relief from removal.

Assuming without deciding that this argument was not waived in the district court,

a Ninth Circuit case decided after Galvan-Aguilar filed his opening brief forecloses

this argument as well, as he concedes in his reply brief. See United States v.

Sanchez-Aguilar, 719 F.3d 1108, 1111-12 (9th Cir. 2013) (explaining that the

statute and regulation governing expedited removal set forth the rights to which

non-admitted aliens are entitled, “but the right to be informed of potentially


      1
       In his opening brief, Galvan-Aguilar “acknowledges that the right to
counsel/due process violation argument appears foreclosed by Barajas-Alvarado,
655 F.3d at 1088, in the context of a § 1225 expedited removal proceeding”, but he
suggests there should be a different result if the Section 1225 expedited removal
proceeding is later used as the basis for a criminal conviction under Section 1326.
This argument is unavailing, however, as that is precisely the context in which
Barajas-Alvarado was decided.
                                          3
available avenues of relief from removal is not among them”; thus, the “failure to

inform Sanchez-Aguilar of his ability to request withdrawal of his application for

admission did not violate his due process rights”). While Galvan-Aguilar insists

that Sanchez-Aguilar was “wrongly decided”, it is axiomatic that unless a case is

overruled or becomes “clearly irreconcilable” with a Supreme Court holding, one

panel is bound by the decisions of another panel. See Chambers v. McDaniel, 549

F.3d 1191, 1199 (9th Cir. 2008) (citing Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (en banc)).

      In conclusion, the two due process claims that Galvan-Aguilar advances on

appeal are directly negated by binding circuit precedent.

AFFIRMED.




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