                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 04 2011

                                                                        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. 10-10059

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00017-PMP

  v.
                                                 MEMORANDUM *
DAVID ANTONIO ESCOBAR-
MENJIVAR,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       David Antonio Escobar-Menjivar appeals from his conviction for being a

deported alien found unlawfully in the United States, in violation of 8 U.S.C.

§ 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
any ground supported by the record. See United States v. Tello, 600 F.3d 1161,

1167 n.6 (9th Cir. 2010). We affirm.

      Escobar-Menjivar contends that the district court erred in denying his

motion to dismiss the indictment because the prior removal alleged in the

indictment was the product of a fundamentally unfair deportation proceeding. On

appeal, Escobar-Menjivar argues that he was not adequately advised of possible

eligibility for relief from removal pursuant to 8 U.S.C. § 1229c(a). The contention

fails because Escobar-Menjivar cannot demonstrate prejudice from any alleged due

process violation, as he was previously permitted to voluntarily depart.

See 8 U.S.C. § 1229c(c); see also United States v. Gonzalez-Valerio, 342 F.3d

1051, 1054 (9th Cir. 2003) (holding that district court should have denied motion

to dismiss an 8 U.S.C. § 1326 indictment where the defendant failed to show

prejudice resulting from due process violation

in deportation proceedings).

      AFFIRMED.




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