United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 29, 2004
Charles R. Fulbruge III
Clerk
No. 04-50426
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO MADRID-MANRIQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:03-CR-1587-ALL-PRM
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eduardo Madrid-Manriquez (“Madrid”) appeals from his bench-
trial conviction of illegal-reentry, a violation of 8 U.S.C.
§ 1326. Madrid challenges the district court’s denial of his
motion to dismiss his indictment on the ground that the January
2000 deportation forming the basis for the indictment in the
instant case violated his due process rights because the
deportation order was based on a 1997 conviction of driving while
intoxicated (“DWI”). He emphasizes that in 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this opinion should not be published and is not precedent except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.
No. 04-50426
-2-
Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001), this court held
that a felony DWI conviction could not be used as a basis for a
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A), because it
was not a “crime of violence” and thus did not qualify as an
“aggravated felony.” See also Leocal v. Ashcroft, 125 S. Ct.
377, 379 (2004).
The denial of a motion to dismiss an indictment is reviewed
de novo. United States v. Wilson, 249 F.3d 366, 371 (5th Cir.
2001). To challenge the validity of an underlying deportation
order, an alien must establish that: (1) the prior deportation
hearing was fundamentally unfair; (2) the hearing effectively
eliminated the alien’s right to seek judicial review of the
removal order; and (3) the procedural deficiencies caused actual
prejudice. United States v. Lopez-Vasquez, 227 F.3d 476, 483
(5th Cir. 2000); 8 U.S.C. § 1326(d). Madrid has failed to show
that his deportation proceeding was fundamentally unfair inasmuch
as it did not violate his procedural due process rights. See
United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002),
cert. denied, 537 U.S. 1135 (2003). The court need not reach the
appellants’ remaining arguments. See id. at 231; Lopez-Vasquez,
227 F.3d at 485.
The judgment of the district court is AFFIRMED.