United States of America, Plaintiff-appellee, v. Juan Jose Ayala-arroyo, Defendant-appellant, 19 F.3d 29 (9th Cir. 1994)

Before: BROWNING, KOZINSKI and NOONAN, Circuit Judges

MEMORANDUM^** 

Juan Jose Ayala-Arroyo appeals his conviction of having unlawfully reentered the United States having previously been deported following conviction of an aggravated felony in violation of 8 U.S.C. § 1326. We affirm his conviction.

FACTS

On January 8, 1992 Ayala pleaded guilty in the Circuit Court of the State of Oregon to the felony of unlawful delivery of a controlled substance. Under Oregon law, having pleaded guilty, he could only appeal his sentence. Oregon Revised Statutes 138.053. The appeal period expired February 7, 1992.

On January 30, 1992 a deportation hearing was held, and Ayala was ordered deported. He illegally reentered the United States the same day. On June 22, 1992 he was arrested on a traffic violation warrant. On July 8, 1992 he was charged with the crime of which he was convicted in this proceeding. He moved to dismiss the indictment on the ground that the deportation hearing had been illegal. The court denied the motion, and he was convicted. He appeals on three grounds.

ANALYSIS

The Validity of the Deportation Order

Ayala vigorously attacks the validity of the deportation order, contending that his Oregon conviction was not final since the appeal period had not run. He fails, however, to show prejudice because he could only have appealed his sentence; he had admitted his guilt. Admitting his guilt, he admitted being a person not of good moral character as defined by 8 U.S.C. § 1101. Consequently, there was no alternative except his deportation.

The Certificate of Conviction

Ayala challenges the copy of his conviction that was introduced into evidence. The government, however, followed a method permitted by Federal Rule of Evidence 902, and use of this rule complied with Federal Rule of Civil Procedure 44(c) and Federal Rule of Criminal Procedure 27.

Downward Departure

There is no jurisdiction to consider an argument objecting to the court's failure to depart downward if the court has exercised its discretion in choosing not to depart downward. Judge Hogan exercised his discretion.

AFFIRMED.