NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50254 Plaintiff-Appellee, D.C. No. 3:18-cr-04951-BEN-1 v. ERIK SANTIAGO LEON DEL ANGEL, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted December 8, 2020** Pasadena, California Before: KELLY,*** GOULD, and R. NELSON, Circuit Judges. Erik Santiago Leon Del Angel appeals after a guilty plea and sentence for attempted misdemeanor illegal entry, in violation of 8 U.S.C. § 1325, and a felony * 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). *** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm for the reasons that follow. 1. Del Angel argues that the district court erred in denying his request for a third post-plea, pre-sentencing continuance. We review the denial of a motion for a continuance for abuse of discretion. United States v. Walter-Eze, 869 F.3d 891, 907–08 (9th Cir. 2017). We assume, without deciding, the four factors laid out in United States v. Flynt apply to post-conviction, pre-sentencing requests for continuances. 756 F.2d 1352, 1358–59 (9th Cir.), amended, 764 F.2d 675 (9th Cir. 1985). We affirm because Del Angel fails to “show at a minimum that he has suffered prejudice as a result of the denial of his request.” Id. at 1359. Del Angel requested a third continuance believing our decision in C.J.L.G. v. Barr, 923 F.3d 622 (9th Cir. 2019) (en banc), allowed him to vacate his prior removal orders. But C.J.L.G. does not “provide . . . a previously unavailable ground sufficient to provide some material relief,” United States v. Ensminger, 567 F.3d 587, 594 (9th Cir. 2009) (citation omitted). Attaining Special Immigrant Juvenile (“SIJ”) status and becoming a legal permanent resident (“LPR”) would not retroactively affect the elements of the criminal charge under 8 U.S.C. § 1326 to which he pleaded guilty.1 See United States v. Gracidas-Ulibarry, 231 F.3d 1 Del Angel did not argue below that attaining SIJ status would affect his guilty plea under 8 U.S.C. § 1325, and appears to base his appeal only on his guilty plea 2 1188, 1196 (9th Cir. 2000) (en banc). Attaining SIJ status would create a specialized parole legal fiction dating back to either the time of Del Angel’s most recent entry in October 2018, or his filing for SIJ status, but would not transform his most recent unlawful entry into a lawful admission under § 1101(a)(13)(A). Garcia v. Holder, 659 F.3d 1261, 1263–64, 1267 (9th Cir. 2011); see also ...
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