Flores-Rodriguez

MEMORANDUM **

A federal grand jury returned a one-count indictment against Israel Flores-Rodriguez, charging him with being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . A jury found Flores-Rodriguez guilty and the district court sentenced him to sixty-three months custody, an enhanced sentence reflecting that he had been convicted of a crime of violence before he was deported. Flores-Rodriguez challenges both his conviction and sentence, arguing that (1) the district court erred in not dismissing the indictment because it failed to allege any mens rea; (2) the district court erred in excluding the 1995 Notice of Action and thereby prevented him from presenting to the jury a legally valid defense; (3) the district court violated his Fifth and Sixth Amendment rights by sentencing him to more than two years imprisonment; and (4) the district court erred in denying his motion to dismiss the indictment due to an invalid deportation. His first three arguments fail; his last argument, however, may have merit and, thus, we remand on that ground alone.

Flores-Rodriguez’s reliance on United States v. Salazar-Gonzalez, 458 F.3d 851 (9th Cir.2006), is…

dissenting in part.

Flores-Rodriguez suffered no prejudice from the defects in his underlying deportation proceeding. Even had the immigration judge informed Flores-Rodriguez of his eligibility for a § 212(h) waiver, the outcome of the proceedings would not have changed because Flores-Rodriguez did not have a visa immediately available to him. See 8 U.S.C. § 1255 (a) (providing three conditions to adjust status, including an immediately available visa at the time the alien files an application for an adjustment of status). Remand is not warranted where, as here, Flores-Rodriguez bases eligibility for an adjustment of status on *342 pure speculation — namely, that he may have married a U.S. citizen or his mother might have become a naturalized citizen.

The record contains no evidence that he or his U.S. citizen girlfriend contemplated marriage, or that his mother contemplated naturalization. As the government explained, his mother resided in the United States for more than twenty years without being naturalized. He does not dispute that on the date of the deportation proceeding, Flores-Rodriguez was not married, his mother was not naturalized, and, a visa was not immediately…