United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-20305
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN MACIAS-CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-898-ALL
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Martin Macias-Cruz (Macias) appeals from his illegal
reentry conviction pursuant to 8 U.S.C. § 1326(b). A prior panel
of this court considered Macias’s appeal and issued an opinion
affirming the judgment of the district court. United States v.
Macias-Cruz, No. 03-20305, 2003 WL 22880723 at **1 (5th Cir.
Dec. 5, 2003)(unpublished). That opinion was vacated on January 7,
2004, when the prior panel granted rehearing. United States v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Macias-Cruz, No. 03-20305, 2004 WL 48915 (5th Cir. Jan. 7, 2004)
(unpublished), vacating 2003 WL 2280723.
Macias-Cruz challenges his conviction for illegal reentry
in violation of 8 U.S.C. § 1326, arguing that the underlying 1998
deportation order was fundamentally unfair and deprived him of
administrative and judicial review. He argues that he was actually
prejudiced by the 1998 deportation proceeding because the
immigration judge ordered him deported based on the mistaken belief
that his 1994 assault conviction was an “aggravated felony.”
Because Macias-Cruz did not raise this issue in the
district court, our review is for plain error. See United States
v. Olano, 507 U.S. 725, 733 (1993). In order to collaterally
challenge a prior deportation order in a criminal proceeding under
8 U.S.C. § 1326, the alien must “establish that (1) the prior
hearing was fundamentally unfair; (2) the hearing effectively
eliminated the right of the alien to challenge the hearing by means
of judicial review of the order; and (3) the procedural
deficiencies caused the alien actual prejudice.” See United States
v. Lopez-Ortiz, 313 F.3d 225, 229 (2002), cert. denied, 537 U.S.
1135 (2003); see also 8 U.S.C. § 1326(d)(setting forth requirements
for challenge to validity of a deportation order in a criminal
proceeding, including, inter alia, the requirement that the “alien
exhausted any administrative remedies that may have been available
to seek relief against the order”).
2
Macias-Cruz has not made the requisite showing for
challenging the validity of his prior deportation order. See
Lopez-Ortiz, 313 F.3d at 229; 8 U.S.C. § 1326(d). Thus, he has not
demonstrated plain error with respect to his challenge to his
criminal conviction pursuant to 8 U.S.C. § 1326 on the ground that
his 1998 deportation order violated due process. Accordingly, the
judgment of the district court is AFFIRMED.
3