United States v. Jose Meraz-Olivera

MEMORANDUM *

Jose Meraz-Olivera appeals his jury conviction on a one count indictment for violating 8 U.S.C. § 1326 , and the district court’s denial of his motion to dismiss the indictment. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. The district court did not err in denying Meraz-Olivera’s motion to dismiss the indictment as improperly predicated on the August 2000 expedited removal order. We have jurisdiction to resolve his collateral challenge to that order because “there must be some meaningful review” of that administrative action where, as here, it plays “a critical role in the subsequent imposition of a criminal sanction.” United States v. Mendoza-Lopez, 481 U.S. 828, 837 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). Meraz-Olivera “can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.2000) (quotation omitted). Neither element is satisfied here.

Meraz-Olivera was not denied due process by the immigration officer’s…

concurring in part and dissenting in part:

I agree with the majority that the district court did not err in instructing the jury on reasonable doubt. I disagree, however, with the majority’s resolution of Meraz’s due process claim. The Due Process Clause required that Meraz be notified of the opportunity to ask to withdraw his application for admission, and Meraz was prejudiced by the deprivation of that right. His conviction should be reversed.

The majority subverts the essential requirement of constitutional due process in denying Meraz’s claim because he “received all of the process required under 8 U.S.C. § 1225 (b)(1)(A)©.” Memorandum at 612. It is true that “ ‘when Congress enacts a procedure, aliens are entitled to it.’ ” Id. (quoting United States v. Barajas-Alvarado, 655 F.3d 1077, 1084 (9th Cir.2011)). It is not true, however, that an alien’s due process rights in the context of a criminal prosecution are limited to those prescribed by statute or regulation. The Constitution requires that individuals receive process that is “‘meaningful’ and ‘appropriate to the nature of the case’ ” before they are deprived of any protected interest, independent of whether or not such…

FILED

NOT FOR PUBLICATION MAR 28 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50533

Plaintiff - Appellee, D.C. No. 3:09-cr-03837-JAH-

v.

MEMORANDUM*

JOSE MERAZ-OLIVERA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted February 6, 2012 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Jose Meraz-Olivera appeals his jury conviction on a one count indictment

for violating 8 U.S.C. § 1326, and the district court’s denial of his motion to

dismiss the indictment. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The district court did not err in denying Meraz-Olivera’s motion to

dismiss the indictment as improperly predicated on the August 2000 expedited

removal order. We have jurisdiction to resolve his…