                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 12 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50292

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-03313-JLS-1
 v.

MARTIN RUBIO-MUNOZ,                              MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-50293

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-07031-JLS-1
 v.

MARTIN RUBIO-MUNOZ,

              Defendant-Appellant.


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




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             Submitted May 10, 2017**
                               Pasadena, California

Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.

      Martin Rubio-Munoz appeals from his conviction after a bench trial for

illegal reentry after deportation in violation of 8 U.S.C. § 1326, and the revocation

of his supervised release arising from a prior conviction. Rubio argues the district

court erred by denying his motion to dismiss the indictment after he collaterally

attacked his prior expedited removal orders, alleging a deprivation of due process.

“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. Garcia-Gonzalez, 791 F.3d 1175, 1179

(9th Cir. 2015) (citation and internal quotation marks omitted). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      “To sustain a challenge to an indictment (or information) under § 1326, a

defendant must demonstrate that (1) he exhausted the administrative remedies

available for seeking relief from the predicate removal order; (2) the deportation

proceedings ‘improperly deprived [him] of the opportunity for judicial review’;


      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          2
and (3) the removal order was ‘fundamentally unfair.’” United States v. Raya-

Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (alteration in original) (quoting 8

U.S.C. § 1326(d)). Only the third requirement is at issue here. See 8 U.S.C.

§ 1225(b)(1)(C); Raya-Vaca, 771 F.3d at 1202 (“[T]he statute governing expedited

removal proceedings afforded Raya-Vaca no opportunity for administrative or

judicial review.”). “To satisfy the third prong—that the order was fundamentally

unfair—the defendant bears the burden of establishing both that the ‘deportation

proceeding violate[d] [his] due process rights’ and that the violation caused

prejudice.” Id. at 1201–02 (alterations in original) (quoting United States v. Leon-

Leon, 35 F.3d 1428, 1431 (9th Cir. 1994)).

      The district court concluded that Rubio did not meet his burden to establish a

due process violation, finding it implausible that the officers interviewing Rubio in

two different expedited removal interviews recorded the same wrong answer about

any pending petitions. The district court found that the officers properly created

records of Rubio’s statements, advised Rubio of the charges of removal against

him, and reviewed the sworn statement with him. See 8 C.F.R. § 235.3(b)(2)(i)

(requiring immigration officers conducting expedited removal proceedings to

“create a record of the facts of the case and statements made by the alien . . . , have

the alien read (or have read to him or her) the statement . . . ,[and] advise the alien


                                            3
of the charges against him or her”); see also Raya-Vaca, 771 F.3d at 1204 (holding

that “any failure to inform Raya-Vaca of the charge against him and to provide him

the opportunity to review the sworn statement constituted a violation of

Raya-Vaca’s due process rights”). Reviewing all the evidence in the record, we

conclude the district court did not clearly err by crediting the testimony of the two

interviewing officers. See Easley v. Cromartie, 532 U.S. 234, 242 (U.S. 2001)

(holding that clear error requires a reviewing court be “left with the definite and

firm conviction that a mistake has been committed” (citation and internal quotation

marks omitted)).

      AFFIRMED.




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