United States v. Flores-Cano

MEMORANDUM ** Carlos Flores-Cano appeals from his conviction and 52-month sentence following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction *668 pursuant to 28 U.S.C. § 1291 ,- and we affirm the conviction and vacate and remand the sentence. Flores-Cano contends that the district court erred in denying his motion to dismiss the indictment on the grounds that his prior removal was invalid. Specifically, Flores-Cano argues that because the immigration judge (“IJ”) failed to tell him that he was eligible for relief from removal by requesting voluntary departure under 8 U.S.C. § 1229c, his removal proceeding was defective and cannot form the basis for a conviction under 8 U.S.C. § 1326 . We disagree. Even assuming Flores-Cano’s pri- or removal proceeding was defective, because the record demonstrates that his Nevada state drug conviction is a drug trafficking crime, see 8 U.S.C. § 1101 (a)(43)(B); Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), he fails to demonstrate how any due process violation at the removal proceeding prejudiced him. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004). Because under the modified categorical approach Flores-Cano’s Nevada state conviction is a drug trafficking crime, his contention that the district court erred by enhancing his sentence must fail. See Taylor, 495 U.S. at 602 , 110 S.Ct. 2143 ; U.S.S.G. § 2L1.2(b)(1)(A)(i). Next, as Flores-Cano concedes, it was not error for the district court to enhance his sentence under 8 U.S.C. § 1326 (b) based on a prior conviction that was not alleged in the indictment, proven beyond a reasonable doubt or admitted by Flores-Cano. See United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004) (order). However, because Flores-Cano preserved his challenge to the district court’s use of mandatory Sentencing Guidelines (a “nonconstitutional Booker error”), see United States v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir.2006), and because we cannot say that the error was harmless beyond a reasonable doubt, we vacate the judgment and remand for full resentencing. See id. at 1095-97 . CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.