                                                                             FILED
                           NOT FOR PUBLICATION                                 MAY 13 2014

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



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 12-50219

              Plaintiff - Appellee,             D.C. No. 3:11-cr-03255-WQH-1

  v.
                                                AMENDED MEMORANDUM*
ROBERTO FRANCISCO RAMOS-
PEREZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                             Submitted July 9, 2013**
                               Pasadena, California

                               Filed July 15, 2013
                              Amended May 13, 2014

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Defendant Roberto Ramos-Perez appeals the district court’s denial of his

motion to dismiss an indictment charging him with being a previously deported

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
alien found in the United States, in violation of 8 U.S.C. § 1326, and for using a

false document to gain admission to the United States, in violation of 18 U.S.C.

§ 1546(a). After the court denied his motion, Defendant entered a conditional

guilty plea, preserving the dismissal ruling for appeal. We affirm.

      1. Defendant first argues that his deportation was invalid because his

conviction for assault with a deadly weapon, in violation of section 245(a)(1) of

the California Penal Code, was not a conviction for a crime of moral turpitude. In

Ceron v. Holder, No. 08-70836, 2014 WL 1274096 (9th Cir. Mar. 31, 2014) (en

banc), we remanded to the Board of Immigration Appeals the question whether, as

now interpreted by California courts, such a conviction is for a crime involving

moral turpitude. Here, though, the California jury also found that the enhancement

in California Penal Code section 12022.7(a) applied. As Defendant concedes, in

1991 at the time of his conviction, that section required the jury to find both that he

intended to inflict injury and that he in fact personally inflicted serious bodily

injury. See People v. Poroj, 117 Cal. Rptr. 3d 884, 891 (Ct. App. 2010)

(discussing elements of section 12022.7(a) before 1996 amendment). Ceron is

therefore distinguishable. See Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th

Cir. 2009) (noting that an assault conviction that necessarily involves the

aggravating factors of intent and serious injury is a crime involving moral

turpitude).

                                           2
      Defendant argues, though, that we may not consider the records of

conviction demonstrating that the jury found this enhancement, because the

immigration judge did not have those documents and did not rely specifically on

the enhancement. We remain unpersuaded that the indictment should be dismissed

on due process grounds. "[T]o succeed in his attack, [Defendant] must

demonstrate that he was prejudiced and that, therefore, the removal order was

fundamentally unfair." United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th

Cir. 2006). He has not established prejudice. Unlike in Camacho-Lopez,

Defendant was not "removed when he should not have been." Id. In examining

the question of prejudice, we may consider conviction-related documents that were

not before the immigration judge. See United States v. Bustos-Ochoa, 704 F.3d

1053, 1056–57 (9th Cir. 2012) (per curiam), cert. denied, 134 S. Ct. 301 (2013).

      2. Defendant also argues that he is entitled to the "petty offense" exception

to inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), for his conviction of grand

theft, in violation of section 487 of the California Penal Code. This argument is

unavailing because it depends on the success of Defendant’s first argument. The

statutory exception is available only to "an alien who committed only one crime"

of moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(ii). Grand theft in violation of

section 487 of the California Penal Code, like assault with a deadly weapon, is a

crime of moral turpitude. Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994).

                                          3
Because Defendant was convicted of two such crimes, he is not eligible for the

petty offense exception.

      AFFIRMED.




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