NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA. No. 19-50333

Plaintiff-Appellee, D.C. No. 5:18-cr-00110-CJC-1

v.

JOSE ORNELAS-DOMINGUEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted June 9, 2021** Pasadena, California

Before: MURGUIA, BADE, and LEE, Circuit Judges.

Jose Ornelas-Dominguez was convicted and sentenced to eighteen months’

imprisonment for illegal reentry after removal in violation of 8 U.S.C. § 1326(a).

He now appeals the district court’s denial of his motion to dismiss the indictment,

* 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). attacking both his prior removal in 2000 and expedited removal in 2011. He also

challenges his criminal sentence, arguing that the district court erred by imposing a

sentencing enhancement for obstruction of justice and denying his request for a

downward adjustment for acceptance of responsibility. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

1. For Ornelas-Dominguez to prevail on his challenge of his illegal reentry

conviction, he must show that both the 2000 and 2011 removals were unlawful. See

United States v. Rojas-Pedroza, 716 F.3d 1253, 1261 (9th Cir. 2013). We “review[]

de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the

motion to dismiss is based on alleged due process defects in an underlying

deportation proceeding.” United States v. Flores, 901 F.3d 1150, 1155 (9th Cir.

2018) (citation omitted). Factual findings are reviewed for clear error. Id.

Ornelas-Dominguez cannot mount a collateral attack on his 2011 expedited

removal because he cannot satisfy Section 1326(d)’s requirements. Section 1326(d)

gives defendants an opportunity to challenge the validity of prior deportation orders

in criminal proceedings arising under Section 1326. 8 U.S.C. § 1326(d). To pursue

a collateral attack, an alien must show:

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

2 8 U.S.C. § 1326(d).

Ornelas-Dominguez argues that he has demonstrated that the 2011 expedited

removal order was fundamentally unfair under Section 1326(d)(3) because the

immigration officer did not require him to sign Form I-860, purportedly violating 8

C.F.R. § 1235.3(b)(2)(i). Even assuming that Ornelas-Dominguez is correct that the

officer violated that regulation, the failure to follow a regulation does not necessarily

mean the removal order was fundamentally unfair. And Ornelas-Dominguez has

not shown that the alleged failure to follow the regulation amounts to a due process

violation such that it was fundamentally unfair under Section 1326(d)(3). See

United States v. Raya-Vaca, 771 F.3d 1195, 1201-02, 1204–05 (9th Cir. 2014),

abrogated on other grounds, Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct.

1959 (2020).

The record indicates that the immigration officer informed Ornelas-

Dominguez of the charges of removability and that Ornelas-Dominguez received

notice of those charges. See United States v. Barajas-Alvarado, 655 F.3d 1077,

1088 n.12 (9th Cir. 2011). Consequently, Ornelas-Dominguez has failed to establish

that the entry of the 2011 expedited removal was fundamentally unfair under Section

1326(d)(3). Raya-Vaca, 771 F.3d at 1202, 1204–05; Barajas-Alvarado, 655 F.3d at

1088 n.12. We therefore affirm the district court’s denial of Ornelas-Dominguez’s

motion to dismiss the indictment under Section 1326(d).

3 2. Ornelas-Dominguez’s sentencing challenges also fail. We review de

novo a district court’s identification of the correct legal standard but apply the clear

error standard to factual findings. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170

(9th Cir. 2017) (en banc). “[A] district court’s application of the Sentencing

Guidelines to the facts of a given case [are] reviewed for abuse of discretion.” Id.

But “[t]he district court’s determination that [the defendant] obstructed justice is a

factual finding reviewed for clear error.” United States v. Jimenez, 300 F.3d 1166,

1170 (9th Cir. 2002).

Ornelas-Dominguez fled the rehabilitation facility before being sentenced,

resulting in an obstruction of justice enhancement. He argues that because his drug

addiction purportedly prevented him from acting “willfully,” the district court erred

in applying that enhancement. Likewise, he maintains that the district court erred in

denying him a downward adjustment for acceptance of responsibility because he

fled to seek drugs, not to obstruct justice for the sake of obstruction.

Under the Sentencing Guidelines, a district court may impose the two-level

enhancement:

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.

4 U.S. Sent’g Guidelines Manual § 3C1.1 (U.S. Sent’g Comm’n 2018). The Notes

describe “obstructive conduct” as including, but not limited to: “escaping or

attempting to escape from custody before trial or sentencing; or willfully failing to

appear, as ordered, for a judicial proceeding.” U.S. Sent’g Guidelines Manual §

3C1.1, cmt. n.4(E). Our precedent clearly establishes that “[a]bsconding from

pretrial release” constitutes an obstruction of justice. United States v. Draper, 996

F.2d 982, 986 (9th Cir. 1993). Likewise, a district court may infer obstructive intent

from a defendant’s actions, including escape. See United States v. Takahashi, 205

F.3d 1161, 1168 (9th Cir. 2000). Ornelas-Dominguez remained a fugitive until

January of the following year. Therefore, the district court did not clearly err in

concluding that Ornelas-Dominguez willfully remained out of custody.

Ornelas-Dominguez’s final challenge—that his is an “extraordinary case[]”

warranting a downward adjustment for acceptance of responsibility—fares no

better. Section 3E1.1 permits a two-level downward adjustment “[i]f the defendant

clearly demonstrates acceptance of responsibility for his [or her] offense.” U.S.

Sent’g Guidelines Manual § 3E1.1(a). However, pursuant to the Guidelines

Application Notes:

Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both § 3C1.1 and § 3E1.1 may apply.

5 U.S. Sent’g Guidelines Manual § 3E1.1, cmt. n.4. In United States v. Hopper, we

interpreted Application Note 4’s “extraordinary case” reference as an inquiry into

whether “the defendant’s obstructive conduct is not inconsistent with the

defendant’s acceptance of responsibility.” 27 F.3d 378, 383 (9th Cir. 1994). Here,

Ornelas-Dominguez’s pre-sentencing flight undermines his initial acceptance of

responsibility. See United States v. Rosas, 615 F.3d 1058, 1067 (9th Cir. 2010)

(stating that mitigating factors “d[id] not change the fact that [the defendant’s]

flight” from the country a day before state sentencing “was voluntary and that he

had not accepted the responsibility”).

AFFIRMED.

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