NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50314 Plaintiff-Appellee, D.C. No. 8:18-cr-00247-DOC-1 v. CARLOS ELIAS CRUZ-BERMUDEZ, MEMORANDUM* AKA Carlos Elias Bermuda Cruz, AKA Carlos Cruz Bermudez, AKA Carlos Elias Bermudez, AKA Carlos Elias Cruz Bermudez, AKA Carlos E. Cruz-Bermudez, Defendant-Appellant. Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding Submitted February 2, 2021** Pasadena, California Before: GOULD, LEE, and VANDYKE, Circuit Judges. In 1998, Carlos Elias Cruz-Bermudez (“Cruz”) entered the United States without inspection. He was placed in immigration proceedings and ordered * 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). deported. Cruz appealed, and while the appeal was pending, he was given Temporary Protected Status (“TPS”). From 2003 to 2005, Cruz was convicted of multiple felonies. Cruz’s immigration proceedings were reinstated in 2007, and he was again ordered deported. Cruz also waived his right to file a second appeal. Cruz re-entered the United States without inspection and in 2018 committed still another crime. He was then federally prosecuted, and he pleaded guilty to re- entering the United States in violation of 8 U.S.C. § 1326. Cruz filed a motion to dismiss the indictment, and the motion was denied by the district court. As part of his plea agreement, Cruz could appeal the district court’s denial of his motion to dismiss the indictment based on what Cruz alleged to be due process defects in the prior removal proceeding. This appeal followed. We review the denial of a § 1326(d) motion de novo, but the underlying findings of fact are reviewed for clear error. United States v. Sandoval-Orellana, 714 F.3d 1174, 1178 (9th Cir. 2013). The Court also reviews de novo the determination of whether a prior conviction is an aggravated felony. United States v. Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003). To determine whether convictions are aggravated felonies at the time of the 2007 hearing, we employ the two-part test set forth in Taylor v. United States, 495 U.S. 575 (1990). In the first step, called the “categorical approach,” an offense is an aggravated felony if, on the face of the statute of conviction, “the full range of 2 conduct covered . . . falls within the meaning of [an aggravated felony].” Penuliar v. Gonzales, 435 F.3d 961, 966 (9th Cir. 2006) (citation omitted), cert. granted, judgment vacated, 549 U.S. 1178 (2007). But if the statute of conviction reaches both conduct constituting an aggravated felony and conduct that would not do so, we employ the second step, called the “modified categorical approach.” Id. When charged with illegal reentry under 8 U.S.C. § 1326, a defendant has a limited right to bring a collateral attack challenging the …
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