United States v. Filiberto Zavala-Cruz

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-10079 Plaintiff-Appellee, D.C. Nos. 3:19-cr-00701-WHO-1 v. 3:19-cr-00701-WHO FILIBERTO ZAVALA-CRUZ, AKA Jose Luis Navarro-Camacho, AKA Filiberto MEMORANDUM * Zavala, AKA Julio Zavala Cruz, AKA Julio Zavala-Cruz, AKA Filiberto Zavala-Medina, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding Argued and Submitted July 11, 2023 San Francisco, California Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges. Filiberto Zavala-Cruz (“Zavala”) appeals from his guilty-plea conviction for illegal reentry following removal, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm. The district court did not err in denying Zavala’s motions to dismiss the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. indictment. First, Zavala argues that the removal order upon which his conviction was predicated was fundamentally unfair under 8 U.S.C. § 1326(d)(3) because of ineffective assistance of counsel and procedural errors. This argument is unavailing because Zavala failed to establish prejudice from any defect in the immigration court proceedings. See United States v. Gonzalez-Flores, 804 F.3d 920, 927–29 (9th Cir. 2015). Zavala did not make “a plausible showing that an [immigration judge] presented with all of the facts would exercise discretion” to grant him voluntary departure. Id. at 927 (internal quotation marks omitted). Because we affirm the district court’s decision with respect to prejudice, we need not address Zavala’s arguments as to the other elements of a collateral attack under 8 U.S.C. § 1326(d). Second, as Zavala concedes, any omissions in the notice to appear did not deprive the immigration court of jurisdiction. See United States v. Bastide- Hernandez, 39 F.4th 1187, 1192–93 (9th Cir. 2022) (en banc). AFFIRMED. 2