United States v. Christian Gutierrez , 487 F. App'x 820 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4250
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTIAN ORLANDO TABORA GUTIERREZ, a/k/a Orlando Edgardo
Tabora Chavez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00251-HEH-1)
Submitted: October 31, 2012 Decided: November 8, 2012
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, S. David Schiller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christian Orlando Tabora Gutierrez, a native and
citizen of Honduras, appeals his conviction for unlawful reentry
after deportation by an aggravated felon, in violation of 8
U.S.C. § 1326(a), (b)(2) (2006). On appeal, he challenges the
district court’s denial of his motion to dismiss the indictment,
arguing that he satisfied the three statutory requirements for a
collateral attack on his prior removal order. Finding no error,
we affirm.
In a prosecution for illegal reentry after removal, a
defendant may mount a successful collateral attack on the
removal order constituting an element of the offense if he can
show: (1) he exhausted any administrative remedies that may have
been available to challenge the order of removal; (2) he was
effectively deprived of his right to judicial review of the
removal order; and (3) the removal proceedings were
fundamentally unfair. 8 U.S.C. § 1326(d) (2006); see United
States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v.
El Shami, 434 F.3d 659, 663 (4th Cir. 2005).
Because these conditions are listed in the
conjunctive, a defendant must show all three in order to
prevail. United States v. Wilson, 316 F.3d 506, 509 (4th Cir.
2003), overruled on other grounds by Lopez v. Gonzales, 549 U.S.
47 (2006). “However, if the defendant satisfies all three
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requirements, the illegal reentry charge must be dismissed as a
matter of law.” El Shami, 434 F.3d at 663. The failure to
provide an alien with written notice of his deportation hearing
deprives him of his right to seek administrative relief, and
thus the first two requirements for a collateral attack under
§ 1326(d) are satisfied. Id. at 663-64. This court reviews de
novo the district court’s denial of a motion to dismiss a charge
under 8 U.S.C. § 1326(d). Id. at 663.
After conducting a de novo review of the record, we
discern no error in the district court’s finding that Gutierrez
received written notice of the date, time and location of his
original deportation hearing. Further, the evidence of record
supports the district court’s finding that Gutierrez
specifically declined in writing to administratively contest his
removals from the United States, and there is no indication that
these waivers were anything but knowing and intelligent.
Because Gutierrez cannot satisfy the first two prongs
of § 1326(d), we find it unnecessary to reach the issue of
whether his removal proceedings were fundamentally unfair.
Accordingly, we affirm the district court’s order denying
Gutierrez’s motion to dismiss the indictment and the judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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