                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                        No. 11-30360
                 Plaintiff-Appellee,
                                                      DC No.
                      v.                           2:10-cr-6062-
                                                       WFN
 MARCELINO OSEGUERA -MADRIGAL,
 AKA Marcelino Oseguerra-
 Madrigal,                                            OPINION
              Defendant-Appellant.


     Appeal from the United States District Court
        for the Eastern District of Washington
 Wm. Fremming Nielsen, Senior District Judge, Presiding

                  Submitted October 12, 2012*
                     Seattle, Washington

                    Filed November 19, 2012

      Before: A. Wallace Tashima, Milan D. Smith, Jr.,
           and Morgan Christen, Circuit Judges.

                   Opinion by Judge Tashima




  *
    The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
2         UNITED STATES V . OSEGUERA -MADRIGAL

                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction and sentence for being an
alien found in the United States following deportation in a
case in which the defendant collaterally attacked his
underlying removal order.

   The panel held that the Board of Immigration Appeals did
not err in finding the defendant removable based on his
conviction under Wash. Rev. Code § 69.50.412 for use of
drug paraphernalia, which was a conviction “relating to a
controlled substance” under 8 U.S.C. § 1182(a)(2)(A)(i)(II).

    The panel held that the immigration judge did not violate
due process by failing to inform the defendant of the
possibility of relief through a waiver of inadmissibility under
8 U.S.C. § 1182(h), where the defendant was plainly
ineligible for the waiver because the paraphernalia he was
convicted of using was related to cocaine, not marijuana.

    The panel rejected the defendant’s contention that the
district court abused its discretion and imposed a
substantively unreasonable sentence when it granted “only”
a six-month downward variance from the Sentencing
Guidelines range.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         UNITED STATES V . OSEGUERA -MADRIGAL               3

                        COUNSEL

Nicholas Marchi, Carney & Marchi, Seattle, WA, for
Defendant-Appellant.

Alexander C. Ekstrom, Assistant United States Attorney,
Yakima, WA, for Plaintiff-Appellee.


                         OPINION

TASHIMA, Circuit Judge:

    Marcelino Oseguera-Madrigal (“Oseguera”) appeals his
conviction and sentence on a conditional guilty plea for being
an alien found in the United States following deportation, in
violation of 8 U.S.C. § 1326. He challenges the district
court’s dismissal of his collateral attack on the underlying
removal order. We affirm the conviction and find no abuse
of discretion in the district court’s sentencing decision.
Accordingly, we affirm.

I. Background

     Oseguera, a citizen of Mexico, came to the United States
in 1970, at the age of two. In 1994, he was charged with
possession of cocaine, a controlled substance, in Washington
state court. He subsequently pled guilty to a reduced charge
of use of drug paraphernalia, in violation of Wash. Rev. Code
§ 69.50.412. The Immigration and Naturalization Service
initiated removal proceedings against him in 2001. An
immigration judge (“IJ”) found Oseguera removable and the
Board of Immigration Appeals (“BIA”) affirmed the IJ’s
4        UNITED STATES V . OSEGUERA -MADRIGAL

decision. Oseguera was removed from this country in
February 2009.

    On January 11, 2011, Oseguera was indicted for being an
alien in the United States without permission after
deportation, under 8 U.S.C. § 1326. He moved to dismiss the
indictment by collaterally attacking the underlying removal
proceedings. The district court denied his motion, and he
entered a conditional guilty plea, preserving his right to
appeal the denial of his motion to dismiss. The district court
subsequently sentenced Oseguera to thirty-five months’
imprisonment. Oseguera timely appeals.

II. Discussion

    A. Collateral Attack on Immigration Proceedings

    Oseguera contends that the IJ erroneously found him
removable, and that even if he was removable, the IJ violated
his due process rights by failing to inform him of the
availability of potential relief from removal. We review de
novo a collateral attack on an underlying removal order.
United States v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th
Cir. 2002).

    Oseguera first contends that he was not properly
removable because his drug paraphernalia conviction was not
a “violation . . . relating to a controlled substance,” under
8 U.S.C. § 1182(a)(2)(A)(i)(II). In Luu-Le v. INS, 224 F.3d
911 (9th Cir. 2000), we held that Arizona’s statute
criminalizing the possession of drug paraphernalia, Ariz. Rev.
            UNITED STATES V . OSEGUERA -MADRIGAL                             5

Stat. § 13-3415(A),1 is, by its plain language, clearly “relating
to” a controlled substance for purposes of the Immigration
and Nationality Act. Id. at 914-16. In Bermudez v. Holder,
586 F.3d 1167, (9th Cir. 2009), we held that the “materially
identical” drug paraphernalia statute in Hawaii, Haw. Rev.
Stat. § 329-43.5(a),2 was similarly “relating to a controlled
substance.” Id. at 1168-69. The text of the Washington
statute to which Oseguera pled guilty in 1994, Wash. Rev.
Code § 69.50.412(1),3 is materially identical to both the
Hawaii and Arizona statutes. Compare Wash. Rev. Code
§ 69.50.412(1), with Ariz. Rev. Stat. § 13-3415(A), and
Haw. Rev. Stat. § 329-43.5(a). Therefore, Oseguera’s drug

 1
     The Arizona statute, Ariz. Rev. Stat. § 13-3415(A), provides:

           It is unlawful for any person to use, or to possess with intent
      to use, drug paraphernalia to plant, propagate, cultivate, grow,
      harvest, manufacture, compound, convert, produce, process,
      prepare, test, analyze, pack, repack, store, contain, conceal,
      inject, ingest, inhale or otherwise introduce into the human body
      a drug in violation of this chapter.

 2
     The Hawaii statute, Haw. Rev. Stat. § 329-43.5(a), provides:

           It is unlawful for any person to use, or to possess with intent
      to use, drug paraphernalia to plant, propagate, cultivate, grow,
      harvest, manufacture, compound, convert, produce, process,
      prepare, test, analyze, pack, repack, store, contain, conceal,
      inject, ingest, inhale, or otherwise introduce into the human body
      a controlled substance in violation of this chapter.

 3
     The W ashington statute, W ash. Rev. Code §69.50.412(1), provides:

          It is unlawful for any person to use drug paraphernalia to
      plant, propagate, cultivate, grow, harvest, manufacture,
      compound, convert, produce, process, prepare, test, analyze,
      pack, repack, store, contain, conceal, inject, ingest, inhale, or
      otherwise introduce into the human body a controlled substance.
6        UNITED STATES V . OSEGUERA -MADRIGAL

paraphernalia conviction clearly was one “relating to a
controlled substance” under 8 U.S.C. § 1182(a)(2)(A)(i)(II).
The BIA did not err in finding him removable on that basis.

    Oseguera next argues that even if he was properly found
removable, he should have been informed of the possibility
of relief through a waiver of inadmissibility under 8 U.S.C.
§ 1182(h), and that the IJ violated his due process by failing
to inform him that such relief was available. We have
repeatedly held that an IJ’s failure to advise an alien of
apparent eligibility for relief violates due process and, where
accompanied by prejudice, serves as the basis for a collateral
attack on the removal order. See, e.g., United States v. Lopez-
Velasquez, 629 F.3d 894, 896-97 (9th Cir. 2010) (en banc);
United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.
2000); Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir.
1989).

    In this case, however, there was no relief for which
Oseguera was plausibly eligible. While § 1182(h) allows the
Attorney General to waive certain kinds of convictions under
§ 1182(a)(2)(A)(i), a conviction “relating to a controlled
substance” under § 1182(a)(2)(A)(i)(II) is waivable only
“insofar as it relates to a single offense of simple possession
of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h).
Oseguera’s drug paraphernalia conviction was not a
conviction for “simple possession of 30 grams or less of
marijuana.” The information to which Oseguera pled guilty
specifically charged that Oseguera used drug paraphernalia in
that Oseguera “did use a silver spoon and lighter to inject,
ingest, inhale or introduce into the human body cocaine, a
controlled substance.” Because the drug paraphernalia
Oseguera was convicted of using was related to cocaine, not
marijuana, he plainly was ineligible for a waiver. Cf.
          UNITED STATES V . OSEGUERA -MADRIGAL                       7

Escobar Barraza v. Mukasey, 519 F.3d 388, 392-93 (7th Cir.
2008) (holding that one convicted of possession of drug
paraphernalia may be eligible for a § 1182(h) waiver where
the paraphernalia related to the use of marijuana “and the
implied quantity is under 30 grams”). The IJ did not err by
failing to inform him about relief for which he was ineligible.

   For these reasons, the district court did not err in denying
Oseguera’s motion to dismiss the indictment.4

      B. Sentence

    Oseguera contends that the district court abused its
discretion and imposed a substantively unreasonable sentence
when it granted “only” a six-month downward variance from
the Guidelines range of forty-one to fifty-one months. He
contends that his sentence of thirty-five months’
imprisonment is unreasonably long, but he does not dispute
the process by which the district court reached its sentencing
decision.

    We review a district court’s sentencing decisions for
abuse of discretion. Gall v. United States, 552 U.S. 38, 41
(2007). While there is no presumption that a sentence within
the applicable Guidelines range is reasonable, the sentencing
court should use the Guidelines as a “starting point.” United
States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc)
(citation and internal quotation marks omitted). Nor is there


  4
    Oseguera also collaterally attacks his W ashington state conviction
under Padilla v. Kentucky, 130 S.Ct. 1473 (2010), but that attack is
foreclosed by Custis v. United States, 511 U.S. 485 (1994). See also
United States v. Gutierrez-Cervantez, 132 F.3d 460 (9th Cir. 1997).
Accordingly, we do not consider its merits.
8        UNITED STATES V . OSEGUERA -MADRIGAL

a presumption that a sentence outside of the Guidelines range
is unreasonable. Rita v. United States, 551 U.S. 338, 354-55
(2007). Rather, “courts of appeals must review all sentences
– whether inside, just outside, or significantly outside the
Guidelines range – under a deferential abuse-of-discretion
standard.” Gall, 552 U.S. at 41. “The extent of the
difference between a particular sentence and the
recommended Guidelines range is . . . relevant.” Id. Absent
circumstances that take a particular case outside of the “mine
run” of similar cases, a district court moves toward the limits
of its discretion as it moves away from the Guidelines range.
See Rita, 551 U.S. at 350-51. Here, Oseguera provides no
evidence that his circumstances are outside the mine run of
similar cases. The district court acted within its sound
discretion in imposing the below-guidelines sentence that it
did.

    For the foregoing reasons, the judgment of conviction and
the sentence are

    AFFIRMED.
