USA V. CARLOS LOPEZ-LOPEZ, No. 11-50198 (9th Cir. 2012)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 04 2012 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-50198 D.C. No. 3:10-cr-01796-WQH-1 v. MEMORANDUM* CARLOS ROGELIO LOPEZ-LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Argued and Submitted February 16, 2012 Pasadena, California Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.** Defendant Carlos Rogelio Lopez-Lopez ( Lopez ) was indicted on charges of attempted re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b), and false claim to United States Citizenship, in violation of 18 U.S.C. § 911. A * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Robert W. Pratt, District Judge for the U.S. District Court for Southern Iowa, sitting by designation. jury found Lopez guilty on both counts. Lopez appeals his convictions and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We address Lopez s arguments in turn. 1. Lopez s collateral attack under 8 U.S.C. § 1326(d) on his prior order of removal fails because Lopez cannot establish that he had a plausible ground for relief from [removal]. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (internal quotation marks omitted). Lopez cannot establish that he had a plausible ground for relief from removal because his 2008 conviction for receipt of a stolen vehicle, in violation of California Penal Code § 496d(a), was categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). See Alvarez-Reynaga v. Holder, 596 F.3d 534, 536-37 (9th Cir. 2010) (holding that alien s conviction for receipt of a stolen vehicle, in violation of California Penal Code § 496d(a), was categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)); Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir. 2009) (holding that alien s conviction for receipt of stolen property, in violation of California Penal Code § 496(a), was categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)). Because Lopez s conviction was categorically an aggravated felony, Lopez was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and was 2 also ineligible for cancellation of removal or voluntary departure. See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1). 2. Even if the district court erred when it applied a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for Lopez s prior conviction under California Health & Safety Code § 11352(a), any such error was harmless. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) ( When an alleged error is harmless, it is not a ground for resentencing. ) (internal alteration omitted) (quoting United States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008)). Lopez s prior conviction under California Health & Safety Code § 11351 could have justified the enhancement. AFFIRMED. 3
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