United States of America v. David Antonio Escobar- Menjivar

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ANTONIO ESCOBAR-
MENJIVAR,
Defendant - Appellant.
No. 10-10059
D.C. No. 2:09-cr-00017-PMP
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
David Antonio Escobar-Menjivar appeals from his conviction for being a
deported alien found unlawfully in the United States, in violation of 8 U.S.C.
§ 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on
FILED
JAN 04 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-10059 2
any ground supported by the record. See United States v. Tello, 600 F.3d 1161,
1167 n.6 (9th Cir. 2010). We affirm.
Escobar-Menjivar contends that the district court erred in denying his
motion to dismiss the indictment because the prior removal alleged in the
indictment was the product of a fundamentally unfair deportation proceeding. On
appeal, Escobar-Menjivar argues that he was not adequately advised of possible
eligibility for relief from removal pursuant to 8 U.S.C. § 1229c(a). The contention
fails because Escobar-Menjivar cannot demonstrate prejudice from any alleged due
process violation, as he was previously permitted to voluntarily depart.
See 8 U.S.C. § 1229c(c); see also United States v. Gonzalez-Valerio, 342 F.3d
1051, 1054 (9th Cir. 2003) (holding that district court should have denied motion
to dismiss an 8 U.S.C. § 1326 indictment where the defendant failed to show
prejudice resulting from due process violation
in deportation proceedings).
AFFIRMED.

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