United States of America, Plaintiff - Appellee, v. Arturo Altamirano, Defendant - Appellant, 61 F.3d 912 (9th Cir. 1995)

MEMORANDUM^* 

Arturo Altamirano appeals from his conviction pursuant to a conditional plea of guilty to being a deported alien found in the United States in violation of 18 U.S.C. § 1326 on the grounds that the district court erred in determining that his prior deportations were valid and in denying his motion to dismiss the indictment and for additional discovery on the basis of selective prosecution. We have jurisdiction and affirm the determination of the validity of the deportations and remand for reconsideration of the denial of discovery.

* Altamirano contends that his deportation in 1989 was invalid because his waiver of the right to appeal was part of a group waiver and was thereby not knowing and intelligent. To prevail on such a claim, the defendant must show prejudice from the denial of that right. United States v. Proa-Tovar, 975 F.2d 592 (9th Cir. 1992) (en banc). The district court concluded that there was no prejudice because the only basis upon which Altamirano could have appealed his deportation was through a 212(c) waiver, a waiver Altamirano was explicitly advised of and declined to seek. In light of Altamirano's statements before the district court, we agree that he was not prejudiced.

II

Altamirano contends that the district court erred in denying his motion to dismiss and for discovery on the basis of selective prosecution. For the reasons set forth in our published order in United States v. Rendon-Abundez, No. 94-50352 (9th Cir. July 13, 1995), we remand to the district court for reconsideration of the motion in light of our opinion in United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995) (en banc), and in accord with the instructions in Rendon-Abundez.

AFFIRMED in part and REMANDED in part.