- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 11-19-2012
- Case #: 11-30360
- Judge(s)/Court Below: Circuit Judge Tashima for the Court; Circuit Judges M. Smith and Christen
- Full Text Opinion
Marcelino Oseguera-Madrigal (“Oseguera”) was charged and convicted of being an alien found in the United States following deportation, 8 U.S.C. § 1326. Oseguera was discharged after he pled guilty to a reduced charge of use of drug paraphernalia in 1994. The Immigration and Naturalization Service began deportation proceedings in 2001 and deported Oseguera in 2009. In his indictment for being an alien found in the U.S. following deportation, Oseguera collaterally attacked the removal proceedings on two grounds. First, Oseguera argued that a drug paraphernalia conviction was not a “violation relating to a controlled substance, under 8 U.S.C. § 1182(a)(2)(A)(i)(II). The court held that the plain language of the statute clearly relates to a controlled substance for purposes of removal. Next, Oseguera argued that even if he was removable, “he should have been informed of the possibility of relief through a waiver of admissibility under 8 U.S.C. § 1182(h).” Generally, an immigration judge violates an alien’s due process rights when he fails to advise the alien of “apparent eligibility for relief,” when “accompanied with prejudice.” Oseguera was not eligible for a waiver because “a conviction relating to a controlled substance under § 1182(a)(2)(A)(i)(II) is waivable only insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana.” Oseguera was convicted for possession of cocaine, not marijuana. Finally, Oseguera challenged his sentence of thirty-five months as unreasonable since the judge only granted a six-month downward variance from the Guidelines. There is no “presumption that a sentence outside of the Guidelines range is unreasonable.” The court acted within its discretion to impose a sentence below-guidelines and Oseguera provided no evidence to show his circumstance was outside “the mine run of similar cases.” AFFIRMED.