                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 19 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    18-10162

              Plaintiff-Appellee,                D.C. No.
                                                 4:16-cr-02213-RCC-JR-1
 v.

SERGIO SANCHEZ-OCHOA,                            MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                           Submitted August 15, 2019**
                              Pasadena, California

Before: CALLAHAN and CHRISTEN, Circuit Judges, and WU,*** District Judge.

      Sanchez-Ochoa appeals the district court’s judgment of conviction and

sentence for illegal reentry in violation of 8 U.S.C. § 1326. Because the parties are

      *
             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. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
familiar with the facts, we do not repeat them here. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

      1.     The district court did not err by denying Sanchez-Ochoa’s motion for

judgment of acquittal. As an initial matter, Sanchez-Ochoa’s collateral attack

pursuant to 8 U.S.C. § 1326(d) was untimely because he failed to challenge his

underlying 2013 expedited removal order in a pre-trial motion to dismiss. See

United States v. Lopez, 762 F.3d 852, 858 (9th Cir. 2014). Even if Sanchez-

Ochoa’s collateral attack were timely, he must demonstrate that the underlying

expedited removal proceeding was fundamentally unfair, i.e., that the proceeding

violated his due process rights and that he suffered prejudice as a result. See

United States v. Raya-Vaca, 771 F.3d 1195, 1202, 1206 (9th Cir. 2014). Assuming

without deciding that a due process violation occurred, to demonstrate prejudice

Sanchez-Ochoa must show that “he had plausible grounds for relief” from removal.

Id. at 1206. Given Sanchez-Ochoa’s 2001 removal, his 2012 illegal reentry

conviction, and his lengthy felony record, we conclude that he does not

demonstrate plausible grounds for relief. See United States v. Flores, 901 F.3d

1150, 1162–63 (9th Cir. 2018).

      2.     Sanchez-Ochoa also argues that the district court’s return of the bench

trial verdict in his absence violated the Sixth Amendment and Federal Rule of


                                          2
Criminal Procedure 43(a). Because Sanchez-Ochoa did not object to the district

court’s verdict on these grounds, we review for plain error. “Plain error is (1)

error, (2) that is plain, [] (3) that affects substantial rights,” and that “[(4)]seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) (internal quotation marks

omitted). Even assuming that Sanchez-Ochoa demonstrates error that is plain, he

does not show that any error affected his substantial rights. An error affects

substantial rights if the defendant can demonstrate “a reasonable probability that,

but for the error, the outcome of the proceeding would have been different.”

United States v. Ornelas, 906 F.3d 1138, 1143 (9th Cir. 2018) (internal quotation

marks omitted). Here, the evidence shows that Sanchez-Ochoa committed illegal

reentry in violation of § 1326, and he does not argue that his physical presence for

the return of the verdict would have altered the outcome of the bench trial. We

therefore conclude that the district court’s return of the verdict in Sanchez-Ochoa’s

absence was not plain error.

       3.     Last, Sanchez-Ochoa argues that the district court erred by imposing a

sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(B), which authorizes

an eight-level enhancement if, after a defendant was ordered removed for the first

time, the defendant engages in criminal conduct resulting in a felony conviction


                                             3
(other than illegal reentry) for which the sentence was two years or greater. The

district court imposed this enhancement because Sanchez-Ochoa was removed in

2001 and was subsequently convicted of felony possession of a firearm in 2003,

which resulted in a forty-one month sentence. Sanchez-Ochoa argues that the

imposition of this enhancement requires satisfaction of the clear and convincing

standard, and that the 2001 deportation as alleged in the Pre-Sentence Report

(PSR) was never charged or proven and therefore lacks factual proof.

      The record shows that Sanchez-Ochoa objected to the eight-level

enhancement because he thought the enhancement was premised on his allegedly

invalid 2013 expedited removal order. But probation responded in a PSR

addendum that the enhancement was based on Sanchez-Ochoa’s 2001 removal and

his 2003 felony conviction. Sanchez-Ochoa did not object to the facts of his 2001

removal or 2003 conviction, and absent objection, the district court was entitled to

rely on these undisputed statements in the PSR. See United States v. Ameline, 409

F.3d 1073, 1085 (9th Cir. 2005). Therefore, we conclude that the district court did

not err by imposing the eight-level sentence enhancement.

AFFIRMED.




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