FILED NOT FOR PUBLICATION NOV 09 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-10454 Plaintiff-Appellee, D.C. No. 4:15-cr-01731-JGZ-LCK-1 v. JOSE SERGIO CALDERON-ANDRADE, MEMORANDUM* AKA Jose Calderon-Andrade, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding Submitted October 17, 2018** San Francisco, California Before: THOMAS, Chief Judge, and KLEINFELD and GRABER, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Jose Sergio Calderon-Andrade (“Calderon”) appeals from his conviction for illegal re-entry in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We AFFIRM. On April 13, 1998, Calderon, a lawful permanent resident, was detained by border patrol under the alias Antonio Andrade-Calderon (“Andrade”) in Arizona. Calderon was caught driving a U-Haul truck containing 19 undocumented aliens. After apprehension, Calderon repeatedly told border patrol agents that he was “a Mexican citizen who does not have immigration documents to be in, pass through, or reside in the United States legally.” He also signed documents to the same effect, using the name Andrade. On May 4, 1998, “Andrade” (really Calderon-Andrade) appeared at a group removal hearing. The immigration judge informed the group, inter alia, that they had a right to counsel, that one purpose of the hearing was to determine their eligibility for relief from removal, and that they could appeal his decision. “Andrade” stated he understood his rights, and affirmed he was guilty of entering the United States illegally without inspection. “Andrade” did not reveal his true identity or say that he was a lawful permanent resident. “Andrade” was ordered removed, and did not appeal the decision (the “1998 Order”). 2 On August 31, 2015, Calderon was arrested under his real name, and later indicted for illegal re-entry pursuant to 8 U.S.C. § 1326(a), enhanced by § 1326(b). Immigration services had previously discovered that Calderon was also “Andrade,” following an arrest after the entry of the 1998 Order. The 1998 Order was reinstated after each later arrest. Calderon moved to dismiss the indictment, arguing that his status as a lawful permanent resident afforded him greater protections than those he was granted leading up to the 1998 Order. The district court rejected this argument, ruling that any due process violation—if any occurred—was the product of Calderon’s own affirmative misrepresentations. After the denial of his motion to dismiss, Calderon pleaded guilty but reserved the right to appeal the due process decision. This timely appeal follows. We review de novo a denial of a motion to dismiss an 8 U.S.C. § 1326(a) indictment when the motion is based on “alleged due process defects in the underlying [removal] proceeding.” United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (original brackets ...
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