United States v. Garcia-Peregrina , 72 F. App'x 522 ( 2003 )

MEMORANDUM ^***

The district court did not err in finding that Marco Antonio Garcia-Peregrina’s underlying deportation could not be colateraly attacked in an action for ilegal reentry after deportation. 8 U.S.C. § 1326(a), (d). The district court also correctly calculated his criminal history score. This court reviews de novo a colateral chalenge to an underlying deportation. United States v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th Cir.2002). A district court’s determination that a prior conviction counts for purposes of the criminal history score under the Sentencing Guidelines is also reviewed de novo. United States v. Lopez-Pastrana, 244 F.3d 1025, 1027 (9th Cir.2001).

In a criminal proceeding for ilegal reentry after deportation,

an alen may not chalenge the valdity of the deportation order ... unless the alen demonstrates that-

(1) the alen exhausted any administrative remedies that may have been avalable to seek relef against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alen of the opportunity for judicial review; and

(3) the entry of the order was fundamentaly unfair.

8 U.S.C. § 1326(d).

Garcia-Peregrina was not deprived of the opportunity for judicial review and therefore cannot collaterally attack the underlying deportation. 8 U.S.C. § 1326(d)(2). Garcia-Peregrina withdrew his pending appeal from this court, thereby waiving the right to continued judicial review. See United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

Additionally, Garcia-Peregrina was not deprived of judicial review through retroactive application of AEDPA § 440(d) in his deportation proceedings. The rule announced by this court one and one-half years after Garcia-Peregrina’s deportation that AEDPA § 440(d) cannot apply to “deportation cases pending on the date AEDPA became law,” does not authorize a collateral challenge to the underlying deportation. Magana-Pizano v. I.N.S., 200 F.3d 603, 611 (9th Cir.1999). This court recently stated, “as Magana-Pizano announced a new rule, it does not apply retroactively on collateral review.” Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1171 (9th Cir.2001).

The district court did not err in assigning one point to Garcia-Peregrina’s criminal history score for a prior misdemeanor assault. U.S. Sentencing Guidelines Manual §§ 4A1.1, 4A1.2. The offense counts because “assault is a serious crime which is normally counted under Guideline 4A1.2.” United States v. Kemp, 938 F.2d 1020, 1024 n. 4 (9th Cir.1991).

AFFIRMED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.