Submitted, Pasadena, California: March 3, 2015 [*].
Appeal from the United States District Court for the Southern District of California. D.C . No. 3:12-cr-04471-BTM-1. Barry T. Moskowitz, District Judge, Presiding.
The panel affirmed a conviction for being a previously removed alien illegally found in the United States in violation of 8 U.S.C. § 1326(a).
The panel held that the district court correctly denied the defendant's motion to dismiss the indictment, where even assuming the existence of a due process violation in the underlying expedited removal proceeding, the defendant failed to demonstrate that relief in the form of withdrawal of application for admission was plausible and thus failed to carry his burden of demonstrating prejudice.
The panel held that the district court did not err in denying the defendant's motion to compel the government to produce statistics about the numbers of individuals with a background similar to his who were granted withdrawal of application of admission, where the statistics the defendant sought are not presently available and cannot be accurately compiled even with the expenditure of significant resources.
Kara Hartzler, Federal Public Defender of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; and Anne Kristina Perry, Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Michael R. Murphy,[**] Ronald M. Gould, and Richard C. Tallman, Circuit Judges.
MURPHY, Circuit Judge:
A grand jury indicted Gustavo Garcia-Gonzalez on one count of being a previously removed alien illegally found in the United States, in violation of 8 U.S.C. § 1326(a). Garcia moved the district court to dismiss the indictment, arguing the prior removal upon which it was based was fundamentally unfair. See id. § 1326(d). The district court denied the motion; Garcia entered a conditional guilty plea preserving his right to challenge that decision on appeal. See Fed. R. Crim. P. 11(a)(2). Garcia asserts the district court ...