United States v. Adrian Pena-Robles

MEMORANDUM

Adrian Pena-Robles appeals his conviction and 36-month sentence for attempted entry into the United States after deportation. 8 U.S.C. § 1326 (a), (b). He argues the district court erred in denying his motion to dismiss the § 1326 indictment on grounds that his previous removal order was the result of an expedited removal proceeding that violated his right to due process. Specifically, he contends that he did not validly waive his right to an attorney in connection with the removal proceedings. He claims prejudice because an attorney could have challenged whether the state attempted murder conviction underlying his expedited removal was an aggravated felony. In addition, Pena-Robles challenges his sentence. We deferred submission of the case pending resolution of United States v. Borbon, No. 10-50272, United States v. Contreras-Lopez, No. 10-50288, and United States v. Reyes-Bonilla, No. 10-50361. These cases have now been decided.

We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s denial of the motion to dismiss the indictment. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). We review de novo whether a prior…