United States v. Gelmy Ortiz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4924
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GELMY RODOLFO ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00157-RJC-1)
Submitted: June 26, 2012 Decided: July 19, 2012
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Ross H. Richardson, Assistant Federal Defender, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gelmy Rodolfo Ortiz 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 requirements
for a collateral attack on his prior removal order set forth in
8 U.S.C. § 1326(d) (2006). Finding no error, we affirm.
In a prosecution for illegal reentry after removal, a
defendant may mount a successful collateral attack on the
underlying 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). A defendant must
satisfy all three of the above requirements 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 requirements, the
illegal reentry charge must be dismissed as a matter of law.”
El Shami, 434 F.3d at 663. This court conducts a de novo review
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of the district court’s denial of a motion to dismiss an
indictment count charging an offense under 8 U.S.C. § 1326(d).
Id.Courts have generally held that “the exhaustion
requirement [of § 1326(d)(1)] must be excused where an alien’s
failure to exhaust results from an invalid waiver of the right
to an administrative appeal.” United States v. Sosa, 387 F.3d
131, 136 (2d Cir. 2004); accord United States v. Reyes-Bonilla,
671 F.3d 1036, 1043 (9th Cir. 2012) (“If Reyes did not validly
waive his right of appeal, the first two requirements under
§ 1326(d) will be satisfied.”); United States v. Martinez-Rocha,
337 F.3d 566, 569 (6th Cir. 2003). If, however, “an alien
knowingly and voluntarily waives his right to appeal an order of
deportation, then his failure to exhaust administrative remedies
will bar collateral attack on the order in a subsequent illegal
reentry prosecution under § 1326(d).” United States v. Cerna,
603 F.3d 32, 38 (2d Cir. 2010).
After conducting a de novo review of the record, we
discern no error in the district court’s finding that Ortiz
knowingly and voluntarily waived his right to appeal after being
advised of his rights. Although Ortiz contends on appeal that
he “easily met the first two § 1326(d) factors because he was
specifically instructed that he had no right to contest
deportation and would not be allowed to see an immigration judge
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– depriving him both of judicial review and of any
administrative remedies,” we disagree. Ortiz does not dispute
on appeal that he signed the waiver on page two of the Notice of
Intent. Moreover, the district court credited Deputy Matias’
testimony that it was his practice to go over the waiver
provisions line-by-line with an alien, and we find no clear
error in this determination. See Anderson v. Bessemer City, 470
U.S. 564, 574 (1985) (“Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”). Additionally, although the district court
credited Ortiz’s claim that he was told that he had no right to
see an immigration judge, “[e]xpedited proceedings are conducted
by a [DHS] officer, not an immigration judge.” United States v.
Calderon-Segura, 512 F.3d 1104, 1107 (9th Cir. 2008); see 8
U.S.C. § 1228(b) (2006); 8 C.F.R. § 238.1 (2012). Thus, Ortiz
was correctly informed that he was not entitled to a hearing
before an immigration judge.
Because Ortiz 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 Ortiz’s motion to
dismiss the indictment and the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
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expressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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