Eric Bartoli v. Director Federal Bureau of Prisons

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-2577 D.C. No. Plaintiff - Appellee, 4:19-cr-06065-MKD-1 v. MEMORANDUM* HUGO SANCHEZ-MERINO, SPANISH INTERPRETER REQUIRED, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Mary K. Dimke, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Defendant Hugo Sanchez-Merino appeals the district court’s denial of his first, third, and fourth motions to dismiss criminal charges brought against him under 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and affirm. * 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).  “We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 for illegal reentry when the motion is based on alleged due process defects in an underlying deportation proceeding.” United States v. Guizar- Rodriguez, 900 F.3d 1044, 1047 (9th Cir. 2018) (simplified). “We review the district court’s findings of fact for clear error.” United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015) (simplified). 1. Section § 1326(d) bars a defendant charged with unlawful reentry from collaterally attacking their conviction unless they demonstrate that three conditions are met. United States v. Palomar-Santiago, 593 U.S. 321, 326 (2021). “The requirements are connected by the conjunctive ‘and,’ meaning defendants must meet all three.” Id. One of those conditions requires a defendant to demonstrate that the entry of the order against them was “fundamentally unfair.” 8 U.S.C. § 1326(d)(3). Under this prong, a defendant bears the burden of demonstrating that his due process rights were violated and that the defendant suffered prejudice as a result. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). To show prejudice, a defendant must show “that he had a plausible ground for relief from deportation.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (simplified). Even assuming his due process rights were violated, Sanchez-Merino cannot show he suffered prejudice here. Sanchez-Merino argues he suffered prejudice from alleged due process 2 24-2577 violations because he was a plausible candidate for relief from removal. He makes this argument with respect to both his May 2000 and August 2001 removal orders. But Sanchez-Merino cannot demonstrate that the reasons for his admissibility “establish that it would be in the interest of justice” for him “to avoid a formal removal order.” United States v. Cisneros-Resendiz, 656 F.3d 1015, 1021 (9th Cir. 2011) (simplified). The “factors directly relating to the issue of inadmissibility indicate” whether “the granting of [a] withdrawal would be in the interest of justice.” Id. at 1020. Here, Sanchez-Merino presented himself at the U.S. border and falsely claimed he was a U.S. citizen—showing customs officials a birth certificate belonging to somebody else. And fraudulently or willfully misrepresenting a material fact, including procuring fraudulent documentation, makes an arriving noncitizen inadmissible. See 8 U.S.C. § 1182(a)(6)(C)(i). So when a noncitizen “has willfully defied U.S. immigration laws by making a false claim of citizenship . . . the [immigration judge (“IJ”)] can reasonably decide that it is not in the ‘interest of justice’ to grant . . . relief from a formal removal order.” Cisneros-Resendiz, 656 F.3d at 1022. Factors such as Sanchez-Merino’s “age and family ties to the United States” are not relevant to this inquiry. See id. at 1021. Because he cannot show that he could plausibly have obtained approval to withdraw his application for admission, Sanchez-Merino fails to satisfy his burden of showing that he suffered 3 24-2577 prejudice. See United States v. Valdez-Novoa, 780 F.3d 906, 916 (9th Cir. 2015). 2

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL ALBARRAN, No. 24-2758 D.C. No. Petitioner - Appellant, 3:22-cv-05788-JNW v. MEMORANDUM* DAN WHITE, Respondent - Appellee. Appeal from the United States District Court for the Western District of Washington Jamal N. Whitehead, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Appellant Miguel Albarran (“Albarran”) appeals the district court’s dismissal of his federal habeas petition as untimely, contending he should be entitled to * 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). equitable tolling. We review de novo, Smith v. Davis, 953 F.3d 582, 587 (9th Cir. 2020) (en banc), and we affirm. Albarran was initially convicted of second-degree rape for assaulting his girlfriend’s thirteen-year-old daughter and sentenced to a mandatory twenty-five years in prison under Washington state law. He later brought an ineffective assistance of counsel claim against his trial counsel, alleging that his counsel did not adequately advise him to take a plea agreement. After unsuccessful state post- conviction proceedings ended, Albarran’s post-conviction counsel miscalculated a filing deadline and failed to timely file Albarran’s federal habeas petition. See 28 U.S.C. § 2244(d)(1). To qualify for equitable tolling to excuse this late filing, Albarran must demonstrate (1) diligent pursuit of his rights and (2) some extraordinary circumstance that prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010). However, miscalculating filing deadlines is not an extraordinary circumstance but rather run-of-the-mill attorney error that “is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.” Lawrence v. Florida, 549 U.S. 327, 336–37 (2007); see also Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015) (“Attorney mistakes that warrant the label ‘garden variety’—like miscalculating a filing deadline—are the sort of mistakes that, regrettably, lawyers make all the 2 24-2758 time.”) (emphasis added). Thus, the district court properly rejected Albarran’s request for equitable tolling and dismissed his habeas petition as untimely. AFFIRMED. 3 24-2758

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-2404 D.C. No. Plaintiff - Appellee, 4:22-cr-06003-MKD-1 v. MEMORANDUM* TOMMIE SLACK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Mary K. Dimke, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Tommie Slack (“Appellant”) appeals his 108-month sentence following his guilty plea to possession with intent to distribute fentanyl under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vi). Appellant disputes the imposition of a two-level * 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). enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during commission of the offense. Reviewing the district court’s interpretation of the sentencing guidelines de novo and the application of those guidelines to the facts for abuse of discretion, United States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021), we have jurisdiction under 28 U.S.C. § 1291. We affirm. There was no error in the application of the firearm enhancement. Under U.S.S.G. § 2D1.1(b)(1), “the government simply bears the burden of proving that the weapon was possessed at the time of the offense.” United States v. Alaniz, 69 F.4th 1124, 1126–27 (9th Cir. 2023). The Government demonstrated constructive possession by bringing forward evidence tying Appellant to the vehicle where the firearm was found, including: a repair receipt for the vehicle in Appellant’s name, Appellant’s reference to the vehicle as “his Benz,” his fiancé taking control of the vehicle after his arrest, Appellant’s phone call with Agent Mitchell to challenge the removal of his personal items from the vehicle, and Appellant’s awareness of the vehicle’s change in performance after his arrest. Nor was there “clear error” in determining the cooperating defendant, who further tied Appellant to the vehicle and the firearm, was credible. See United States v. Baker, 58 F.4th 1109, 1126 (9th Cir. 2023). Together, these facts demonstrate “a sufficient connection between the defendant and the item to support the inference that the defendant exercised dominion and control over the item.” United States v. 2 24-2404 Baldon, 956 F.3d 1115, 1127 (9th Cir. 2020) (internal quotations omitted) (cleaned up). Nothing in the record suggests that there was improper reliance on U.S.S.G. § 1B1.3(a)(1)(b) as an alternative reason for applying the two-level firearm enhancement based on Appellant’s personal possession of the firearm under U.S.S.G. § 2D1.1(b)(1). AFFIRMED. 3 24-2404

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0284n.06 Case No. 23-1640 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Jun 09, 2025 ) KELLY L. STEPHENS, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF DANYELLE AMUND PHILLIPS, JR., ) MICHIGAN Defendant-Appellant. ) ) OPINION Before: SUTTON, Chief Judge; CLAY and THAPAR, Circuit Judges. PER CURIAM. Danyelle Phillips Jr. pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In his plea agreement, Phillips reserved the right to seek appellate review of the district court’s determination that section 922(g)(1) does not violate the Constitution on its face. He does so now. But our court recently held that section 922(g)(1) is facially constitutional. United States v. Williams, 113 F.4th 637, 657 (6th Cir. 2024). As Phillips recognizes, this panel can’t overrule that decision, so we affirm.

Case: 24-10772 Document: 58-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-10772 FILED June 10, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Willie Gonzales, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 2:23-CR-93-1 ______________________________ Before Wiener, Ho, and Ramirez, Circuit Judges. Per Curiam: * The Federal Public Defender appointed to represent Defendant- Appellant Willie Gonzales has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Gonzales has not filed a response. We have reviewed counsel’s brief and the relevant portions of the _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-10772 Document: 58-1 Page: 2 Date Filed: 06/10/2025 No. 24-10772 record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5th Cir. R. 42.2. 2