Vergara
United States v. Vergara
Opinion
Lead Opinion
MEMORANDUM **
Gabriel Andrew Vergara appeals from his conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm, but remand to correct the judgment.
Vergara contends that the district court erred by denying his motion to dismiss the indictment and his motion to withdraw his guilty plea, because the underlying deportation proceeding violated his due process rights. To sustain a collateral attack on a deportation order in a subsequent criminal proceeding, a defendant must demonstrate that his due process rights were violated by defects in the underlying deportation proceeding, and that he suffered prejudice as a result. See 8 U.S.C. § 1326 (d); United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir.2003). To establish prejudice, a defendant must show that he had a plausible ground for relief from deportation. See Gonzalez-Valerio, 342 F.3d at 1054 . A defendant who has a serious criminal history must demonstrate unusual or outstanding equities to establish a plausible ground for relief. See id. at 1056-57 .