                                                                            FILED
                           NOT FOR PUBLICATION                               APR 13 2010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. 09-50496

             Plaintiff - Appellee,               D.C. No. 2:09-cr-00250-GAF-1

  v.
                                                                     *
                                                 MEMORANDUM
EDGAR SANTIAGO QUINTANA-
RAMOS,

             Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                        Argued and Submitted April 6, 2010
                               Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and GERTNER, **
District Judge.

       Appellant Edgar Santiago Quintana-Ramos (“Quintana”) was convicted of

illegal reentry by a deported alien, in violation of 8 U.S.C. § 1326. He now



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
appeals the district court’s denial of his motion to dismiss the indictment and

challenges his above-guidelines sentence of 24 months. We affirm.

       The Department of Homeland Security deported Quintana in late October

2007 after he pled guilty in state court to willful neglect of a child resulting in

injury. See Cal. Penal Code § 273a(a). Quintana’s infant stepson had been found

dead in Quintana’s apartment with vomit in his mouth and bruises on his lips. At

the removal hearing, the Immigration Judge (“IJ”) declined to grant Quintana

voluntary departure, a form of relief from deportation that would have precluded a

later illegal reentry charge. In March 2009, law enforcement officials found the

appellant in Riverside, California, and a federal grand jury indicted him shortly

thereafter.

       Quintana seeks to collaterally attack the IJ’s removal order based on an

alleged due process violation in his deportation proceeding. He contends that the

IJ employed a per se rule against voluntary departure for aliens with criminal

records. We conclude that the IJ did not apply a categorical policy, and do not

reach the issue of whether such a policy would constitute a due process violation.

       At the deportation hearing, the IJ explained that his decision to deny

voluntary departure was “because of” Quintana’s “conviction for cruelty to a

child.” He asked Quintana about the circumstances of the conviction, including the



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time served in custody and the age of the child. The IJ thus considered the nature

of Quintana’s criminal record in deciding whether to grant relief.

      Since the IJ properly exercised discretion, there was no due process

violation. See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). As

a result, Quintana’s removal order was not “fundamentally unfair,” United States v.

Lopez-Velasquez, 568 F.3d 1139, 1142 (9th Cir. 2009), and we hold that the

district court correctly denied Quintana’s motion to dismiss on this ground.

      Next, Quintana argues that the district court did not explain the extent of its

deviation from the guidelines and that the ultimate sentence was substantively

unreasonable. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008).

The district court sentenced Quintana to 24 months imprisonment, 8 months above

the top of the guidelines range. The court indicated that it departed from the

guidelines based on the probation officer’s suggestion that Quintana’s child cruelty

conviction was significantly more serious than various crimes that would have

resulted in an additional four-point enhancement. The court also explicitly

considered the living conditions at Quintana’s former home and the severe injuries

suffered by his stepson. Finally, the court rejected the government’s suggestion to

take into account an uncharged murder of Quintana’s former wife, and contrasted

Quintana’s 24-month sentence with the government’s recommendation of at least



                                         -3-
46 months.

      Given the district court’s discussion of these factors, it adequately explained

Quintana’s sentence. Moreover, in light of the evidence of Quintana’s prior child

abuse and neglect, the ultimate sentence imposed was reasonable.

      AFFIRMED.




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