United States v. Marcelo Gonzalez-Lopez

MEMORANDUM

Marcelo Gonzalez-Lopez appeals his conviction following a conditional guilty plea for attempted reentry after deportation, in violation of 8 U.S.C. § 1326 . We affirm. Because the parties are familiar with the case history, we need not recount it here.

I

Gonzalez-Lopez argues that the government’s failure to advise him of his due process right to counsel in a language he could understand invalidated the removal order that was the basis of the § 1326 conviction. The district court denied his motion to dismiss the § 1326 indictment after finding that Gonzalez-Lopez could not demonstrate a plausible claim of prejudice resulting from these due process violations. We agree.

Prejudice cannot be presumed from a failure to adequately inform an alien of his right to counsel when the alien is an aggravated felon. United States v. Reyes-Bonilla, 671 F.3d 1036, 1049 (9th Cir.2012). Because he was incarcerated in state prison for more than a year for a robbery conviction under California Penal Code § 211, Gonzalez-Lopez is considered an aggravated felon under 8 U.S.C. § 1101 (a)(43)(f). See 8 U.S.C. § 1101 (a)(43)(f) (defining an aggravated felony as “a crime of violence for…