United States v. Milton Mendoza

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-10110 Plaintiff-Appellee, D.C. No. 4:18-cr-00282-HSG-1 v. MEMORANDUM* MILTON MENDOZA, AKA Miguel Ramirez Cirigo, AKA Milton Navarette Mendoza, AKA Milton Mendoza Navarette, AKA Edgar Rodriguez, AKA Edgar Angel Rodriguez, AKA Enrique Alvardo Rodriguez, AKA Milton Rodriguez, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding Submitted February 14, 2023** Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges. Milton Mendoza appeals from his guilty-plea conviction for illegal reentry following removal, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 * 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). U.S.C. § 1291, and we affirm. Mendoza argues that the removal order upon which his conviction was predicated was fundamentally unfair under 8 U.S.C. § 1326(d)(3) because the immigration court did not meaningfully inform him of his right to seek voluntary departure and it lacked jurisdiction to enter the order. These arguments are unavailing. First, the district court did not err in determining that Mendoza failed to establish prejudice from any potential defect in the immigration court’s voluntary departure advisement. See United States v. Gonzalez-Flores, 804 F.3d 920, 927-29 (9th Cir. 2015). Second, the 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), cert. denied, No. 22- 6281, 2023 WL 350056 (U.S. Jan. 23, 2023).1 In any event, Mendoza did not meet the other two requirements of § 1326(d), which are mandatory in a collateral attack on an underlying removal order. See United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021). 1 Because the notice to appear conferred jurisdiction on the immigration court, we do not reach Mendoza’s argument that the subsequent notice of hearing was insufficient to cure the alleged jurisdictional defects in the notice to appear. Moreover, any alleged defect in the notice of hearing was harmless in light of Mendoza’s appearance at his removal hearing. 2 20-10110 Mendoza’s motion for leave to file a supplemental brief is denied. AFFIRMED. 3 20-10110