UNITED STATES v. HERNANDEZ VELASCO (2019)

ORDER AND JUDGMENT *

After examining the briefs and appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we order the case submitted without oral argument.

Jose Luis Hernandez-Velasco appeals from an order of the district court denying his motion to withdraw his guilty plea. The issues Hernandez-Velasco raises on appeal have recently been addressed by this court in United States v. Contreras-Cabrera, No. 18-6189, 766 Fed.Appx. 674, 2019 WL 1422627 (10th Cir. Mar. 29, 2019). In particular, Contreras-Cabrera held that, in identical circumstances to the case at hand, (1) there is no futility exception to statutory exhaustion requirements and (2) the relevant charging document(s) gave the immigration judge jurisdiction to order removal under the regulations in effect at the time of removal.¹ Id. at 675–78, 2019 WL 1422627 at *1-3. The analysis set out in Contreras-Cabrera fully resolves the issues raised by Hernandez-Velasco. Although, as an unpublished disposition, Contreras-Cabrera is not binding on this panel, its analysis is thorough and obviously correct. Accordingly, we adopt that analysis and conclude the district court did not err in denying Hernandez-Velasco’s motion to withdraw his guilty plea.

For those reasons set out above, this court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

FOOTNOTES

1.   Given that Hernandez-Velasco’s removal order was entered well before the regulations examined in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), came into existence, it is unnecessary to examine how, or if, the decision in Pereira would affect this analysis. Accordingly, this court offers no opinion on that question.

Michael R. Murphy, Circuit Judge