United States v. Eduardo Carlos Valentin Morales ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 29, 2005
No. 04-14082 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00106-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO CARLOS VALENTIN MORALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 29, 2005)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Eduardo Carlos Valentin Morales appeals his conviction and sentence, under
8 U.S.C. section 1326(a) and (b)(2), for illegally reentering the United States after
having been deported. Valentin-Morales contends that the district court erred
when it found that the underlying deportation proceeding did not violate due
process. Valentin-Morales also contends that the 16-point enhancement of his
sentence violated the Sixth Amendment. We affirm.
An alien may not challenge the validity of a deportation order that forms the
basis of a criminal prosecution under 8 U.S.C. section 1326(a)(1) or (b) unless the
alien can establish that “(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order; (2) the deportation
proceedings at which the order was issued improperly deprived the alien of the
opportunity for judicial review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d). Valentin-Morales contends that his deportation
hearing violated due process, because, as the United States concedes, the
Immigration Judge (IJ) erroneously informed Valentin-Morales that discretionary
relief from deportation was not available.
We need not resolve the difficult question of whether the error of the IJ
violated due process, because we conclude that Valentin-Morales failed to exhaust
the administrative remedies available to him. The record shows that the IJ, after
ruling that Valentin-Morales was not eligible for any form of relief, asked
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Valentin-Morales, “Do you accept the court’s decision, or do you wish to appeal
that decision, sir?” Valentin-Morales replied, “Accept.” Nothing in the record
indicates that Valentin-Morales’s waiver of his right to appeal to the Board of
Immigration Appeals (BIA) was not knowing and intelligent. Although Valentin-
Morales contends that the exhaustion requirement did not apply because the IJ
erroneously informed Valentin-Morales that discretionary relief was unavailable,
we have previously rejected that argument in the context of a habeas corpus
challenge to a deportation order. See Sundar v. I.N.S., 328 F.3d 1320, 1325-26
(11th Cir. 2003). The reasoning of Sundar applies equally here. In addition, if
Valentin-Morales “wanted to re-enter the United States and to do so legally,
nothing precluded him from seeking a rescission of his deportation order even after
his removal from the United States.” United States v. Zelaya, 293 F.3d 1294, 1297
(11th Cir. 2002). Valentin-Morales, therefore, failed to exhaust available
administrative remedies. See id.We further conclude that Valentin-Morales failed to show that he was denied
the opportunity for judicial review. The IJ told Valentin-Morales of his right to
appeal, and Valentin-Morales rejected the opportunity to appeal not only to the
BIA but to this Court as well. Valentin-Morales, therefore, failed to show that the
deportation proceedings improperly deprived him of the opportunity for judicial
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review. See 8 U.S.C. § 1326(d)(2).
Valentin-Morales contends that the sentencing enhancement he received
violated the Sixth Amendment under Blakely v. Washington, 542 U.S. —, 124 S.
Ct. 2531 (2004), the reasoning of which the Supreme Court extended to the federal
sentencing guidelines in United States v. Booker, 543 U.S. —, 125 S. Ct. 738(2005). In his plea agreement, Valentin-Morales waived the right to appeal his
sentence except in three circumstances: “(1) an upward departure from the
otherwise applicable sentencing guideline range; and/or (2) the District Court’s
October 31, 2003 Order denying the defendant’s Motions To Dismiss; and/or (3) a
finding that the defendant’s criminal history falls in Category VI.” None of those
exceptions applies here.
We have consistently held that appeal waivers are valid if knowingly and
voluntarily entered. United States v. Rubbo, 396 F.3d 1330, 1331 (11th Cir. 2005).
Valentin-Morales does not argue that his appeal waiver was not knowing or
voluntary. Because the right to appeal a sentence based on Booker “can be waived
in a plea agreement” and “[b]road waiver language covers those grounds of
appeal,” id. at 1335, Valentin-Morales waived his right to appeal his sentence on
Booker grounds.
AFFIRMED.
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