                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

                                                                        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. 09-50213

               Plaintiff - Appellee,             D.C. No. 3:08-cr-02522-LAB

   v.

 ANTONIO ESPARZA-PEREZ,                          MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                      Larry A. Burns, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Antonio Esparza-Perez appeals from the district court’s order denying his

motion to dismiss the indictment charging him with attempted entry after

deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to

          *
             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).

JC/Research
28 U.S.C. § 1291, and we affirm.

        Esparza-Perez contends that his prior deportation was invalid because an

immigration judge failed to advise him that he might be eligible for discretionary

relief under section 212(c) of the Immigration and Nationality Act. The record

reflects that Esparza-Perez was not prejudiced by any defect in his prior

deportation proceeding. See United States v. Gonzalez-Valerio, 342 F.3d 1051,

1054 (9th Cir. 2003). Specifically, the district court properly concluded that he

failed to establish a plausible ground for relief because the evidence he submitted

was outweighed by, among other factors, his prior conviction for lewd and

lascivious acts upon his minor stepdaughter. See id. 1056-57.

        AFFIRMED.




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