                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 06 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50635

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05230-JLS-1

  v.
                                                 MEMORANDUM*
ANIBAL DIAZ-RODRIGUEZ,

              Defendant - Appellant.


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

                    Argued and Submitted December 10, 2014
                             Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

       Anibal Diaz-Rodriguez, a Mexican national, was convicted of a violation of

8 U.S.C. § 1326. He challenges the district court’s denial of his motion to dismiss

the indictment and the sentence imposed. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
      1. “[W]hen the motion to dismiss is based on alleged due process defects in

an underlying deportation proceeding,” the district court’s denial of a motion to

dismiss an indictment under 8 U.S.C. § 1326 is reviewed de novo. United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). Diaz-Rodriguez argues

that his due process rights were violated when he was deported in 1998 despite

being a lawful permanent resident who was ineligible for deportation. However,

Diaz-Rodriguez was inadmissible on July 3, 1999 and September 29, 2001 when

he falsely claimed to be a U.S. citizen at the port of entry. See 8 U.S.C. § 1182.

Since his expedited removals on July 4, 1999 and September 29, 2001 did not rely

on the 1998 removal but on his bogus claim to American citizenship, they are

logically, factually, and legally independent of that other removal; any due process




                                          2
violation in 1998 cannot be imputed to them. Thus, the district court correctly

denied the motion to dismiss the indictment.1

      2. This court “review[s] the district court’s interpretation of the Sentencing

Guidelines de novo, the district court’s application of the Sentencing Guidelines to

the facts of a case for abuse of discretion, and the district court’s factual findings

for clear error.” United States v. Brooks, 610 F.3d 1186, 1198 (9th Cir. 2010)

(quoting United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (internal

quotation marks omitted)). Diaz-Rodriguez argues that the district court

misinterpreted the Sentencing Guidelines, so our review is de novo. Diaz-

Rodriguez argues that his conviction under California Vehicle Code § 10851(a)

      1
         The July 1, 1999 removal order was reinstated on February 26, 2012,
satisfying the indictment’s allegation that Diaz-Rodriguez was “removed from the
United States subsequent to May 17, 2010.” Moreover, Diaz-Rodriguez’s claim
that he suffered prejudicial violation of his due process rights because the IJ did
not advise him on July 1, 1999 of the possibility of reopening his September 30,
1998 removal proceedings fails. Even if Diaz-Rodriguez should have been told
that his prior removal proceedings could have been reopened, Diaz-Rodriguez had
entered the country on September 30, 1998 apparently on the strength of a
permanent resident card (a “green card”) that had been invalidated by the 1998
deportation proceeding. That entry using an invalid “green card” constituted
separate grounds for removal. See 8 U.S.C. § 1227(a)(1)(A). Any reinstatement of
Diaz-Rodriguez's permanent residency status resulting from a successful reopening
of his 1998 proceedings would not have changed the fact that Diaz-Rodriguez had
entered the country on September 30, 1998 using a then-invalid green card or other
entry document. Because the IJ’s failure to inform Diaz-Rodriguez was not
prejudicial, we need not decide whether the IJ should in fact have informed Diaz-
Rodriguez of the procedure to reopen the prior deportation.

                                           3
should not be treated as an aggravated felony because the statute is divisible and

the conduct to which he admitted in his change of plea does not constitute the

generic aggravated felony of theft, since it did not establish that he exercised

control over the vehicle.

      Assuming that California Vehicle Code § 10851(a) is divisible for purposes

of determining whether a defendant has exercised “control of property,” we hold

that Diaz-Rodriguez’s admitted conduct constituted an aggravated felony. Diaz-

Rodriguez admitted in his state plea form that he “drove a car which did not belong

to [him] without the owner’s permission with the intent of depriving the owner of

title and possession.” Since driving a car is tantamount to exercising control over

it, the district court correctly calculated the applicable offense level, and did not err

in its imposition of Diaz-Rodriguez’s sentence.

      The district court’s judgment denying Diaz-Rodriguez’s motion to dismiss

the indictment and imposing a sentence of 46 months incarceration and 3 years

supervised release is AFFIRMED.




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