United States v. Suazo-Martinez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4294
CARLOS ALBERTO SUAZO-MARTINEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-00-371-DKC)
Submitted: March 6, 2002
Decided: April 15, 2002
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, James M. Trusty,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SUAZO-MARTINEZ
OPINION
PER CURIAM:
Carlos Alberto Suazo-Martinez was convicted of one count of ille-
gal reentry after deportation in violation of 8 U.S.C.A. § 1326(a)
(West 1999). Suazo-Martinez’s attorney has filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967). Counsel states
that there are no meritorious issues for appeal, but raises one issue on
his client’s behalf. Suazo-Martinez has filed a pro se supplemental
brief raising two additional issues.
Counsel contends that the district court erred in denying Suazo-
Martinez’s motion to dismiss the indictment based on a collateral
attack of his underlying deportation order. In a § 1326(a) prosecution
for illegal reentry after deportation, a defendant may collaterally
attack a deportation order constituting an element of the offense if he
can show that: (1) he was effectively deprived of his right to judicial
review of the deportation order; (2) the deportation proceedings were
fundamentally unfair; and (3) he has exhausted any administrative
remedies that may have been available to seek relief against the
deportation order. See 8 U.S.C.A. § 1326(d) (West 1999) (establish-
ing the prerequisites for a collateral attack on an underlying deporta-
tion order in a prosecution under § 1326); United States v. Mendoza-
Lopez, 481 U.S. 828, 839 (1987) (holding "that a collateral challenge
to the use of a deportation proceeding as an element of a criminal
offense must be permitted where the deportation proceeding effec-
tively eliminates the right of the alien to obtain judicial review").
Suazo-Martinez has not established the prerequisites for a collateral
attack on his deportation order. At the deportation proceeding before
the immigration judge, he was advised of, and reserved, his right to
appeal. He then filed a notice of appeal, but he failed to file a timely
brief. Suazo-Martinez was therefore responsible for his failure to
obtain judicial review of his removal order. Thus, the deportation pro-
ceeding against Suazo-Martinez did not deprive him of judicial
review, and Suazo-Martinez has not exhausted his administrative
remedies.
Moreover, any error on the part of the immigration judge in advis-
ing Suazo-Martinez of his ineligibility for § 212(c) relief, see former
UNITED STATES v. SUAZO-MARTINEZ 3
8 U.S.C.A. § 1182(c), INA § 212(c) (1995), was "not the type of error
that provides any basis for collateral attack on the judge’s deportation
order in a subsequent criminal prosecution under 8 U.S.C. § 1326."
United States v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993).
Accordingly, after examining the record and the district court’s mem-
orandum and order, we conclude that there was no basis for the collat-
eral attack and that the motion to dismiss was properly denied.
Next, Suazo-Martinez argues that the Government did not meet the
mens rea element of his offense of conviction because he did not and
could not read the notice he signed informing him that he could not
return to the United States after deportation and thought his reentry
was approved when agents allowed him to enter Texas after examin-
ing his green card. This contention is meritless because the Govern-
ment need, and did, demonstrate only that Suazo-Martinez acted
willfully and knowingly in reentering the United States. United States
v. Espinoza-Leon, 873 F.2d 743, 745 (4th Cir. 1989).
Finally, we reject Suazo-Martinez’s contention that counsel was
ineffective in failing to raise the mens rea claim because the record
does not conclusively demonstrate ineffective assistance of counsel.
United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
Accordingly, we affirm Suazo-Martinez’s conviction and sentence.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
Finally, we dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED