United States v. Mario Ruvalcaba-Garcia

FILED NOT FOR PUBLICATION MAY 10 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50288 Plaintiff-Appellee, D.C. No. 3:16-cr-02363-LAB-1 v. MARIO RUVALCABA-GARCIA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted April 11, 2019 Pasadena, California Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,** District Judge. Mario Ruvalcaba-Garcia appeals his conviction for illegally reentering the United States after having been removed, in violation of 8 U.S.C. § 1326(a), which is predicated on a prior expedited removal order from 2015. In an opinion filed * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. concurrently with this memorandum disposition, we address the district court’s admission of a fingerprint expert’s testimony. Here, we address Ruvalcaba’s remaining challenges to his conviction. We affirm. 1. The district court did not abuse its discretion by admitting enlarged and enhanced copies of documents from Ruvalcaba’s “A-file” as documentary exhibits. See United States v. Estrada-Eliverio, 583 F.3d 669, 672–73 (9th Cir. 2009). The government was not required to introduce the original documents from the A-file, which is an official record that may be proved by a “copy [that] is certified as correct . . . by a witness who has compared it with the original.” Fed. R. Evid. 1005; see also Fed. R. Crim. P. 44(a). Moreover, the government introduced the copies through witnesses who testified that they accurately reproduced the originals, cf. Fed. R. Evid. 1001(e), and Ruvalcaba was free to cross-examine those witnesses about the accuracy of the copies, but he did not do so. Although he argues in his reply brief that he would have liked to cross- examine the prosecutor about the creation of the copies, he waived this argument by failing to present it to the district court or raise it in his opening brief. See United States v. Nickerson, 731 F.3d 1009, 1015 (9th Cir. 2013). 2. The district court correctly denied Ruvalcaba’s motion to dismiss his indictment under 8 U.S.C. § 1326(d), a decision we review de novo. United States 2 v. Flores, 901 F.3d 1150, 1155 (9th Cir. 2018). We need not reach the question whether the 2015 expedited removal proceedings violated Ruvalcaba’s due process rights because he has failed to show “prejudice”—i.e., that he had “‘plausible grounds for relief’ from the removal order.” Id. at 1162 (quoting United States v. Raya-Vaca, 771 F.3d 1195, 1206 (9th Cir. 2014)). The only relief conceivably available to Ruvalcaba in 2015 would have been withdrawal of his application for admission, but withdrawal relief is discretionary, and the six factors used by the agency in exercising that discretion all weigh against relief in this case. See id. First, Ruvalcaba’s “immigration violation was relatively serious” ...

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