United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2005
Charles R. Fulbruge III
No. 04-51303 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PRAJEDIS VARGAS-VARELA,
Defendant-Appellant
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Appeal from the United States District Court for the
Western District of Texas, El Paso Division
3:04-CR-774-ALL-PRM
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Before BENAVIDES, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Prajedis Vargas-Varela (“Appellant”) contests his federal
conviction and sentence for illegal reentry into the United
States after removal. We find no merit in his substantive
challenge to the conviction. However, Appellant’s claim that the
district court sentenced him in violation of United States v.
Booker, 125 S. Ct. 738 (2005), is valid. Thus, we vacate the
sentence and remand.
*
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that this opinion should not be published and is not precedent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.
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I. Background
Appellant was born in Mexico and became a lawful permanent
resident of the U.S. in 1990. In 1998, he was convicted in Texas
of felony DWI (driving while intoxicated). Due to this
conviction, an immigration judge ordered Appellant removed from
the U.S. as an aggravated felon. The Board of Immigration
Appeals subsequently dismissed an appeal of this decision and
Appellant was removed from the country. In 2003, Appellant was
found in the U.S., the removal order was reinstated, and he was
again removed.
In 2004, Appellant was arrested in Texas and charged with
illegal reentry after removal pursuant to 8 U.S.C. § 1326. He
moved for dismissal, arguing, inter alia, that his prior removal
had been fundamentally unfair because it was based on an
erroneous interpretation of law. The district court denied
Appellant’s motion. Appellant waived his right to a jury trial
and the district court subsequently found him guilty on
stipulated facts. The probation officer recommended in the PSR
(presentence report) that Appellant’s criminal history score be
raised from eight points to ten, pursuant to U.S.S.G. § 4A1.1(e),
because Appellant committed the reentry offense within two years
of being released from custody. Appellant objected, arguing that
this was not based on facts admitted by him or alleged in the
indictment, and thus violated the rule of Blakely v. Washington,
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542 U.S. 296 (2004).
The district court overruled the objection. It determined
that Appellant had an offense level of ten, a criminal history of
V, and a guideline sentence range of 21 to 27 months. The court
sentenced him to 24 months in prison.
II. Discussion
Appellant’s initial argument is that the district court
erred by not granting his motion to dismiss due to the invalidity
of his prior removal. Assuming arguendo that Appellant has
correctly identified substantive legal error in the immigration
judge’s order removing him from the U.S. because of the DWI
conviction, it is clear that Appellant has failed to meet the
rather stringent standard we apply for granting relief in such a
case.
In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the
Supreme Court held that a defendant prosecuted under § 1326
could, under very limited circumstances, collaterally attack the
underlying deportation or removal order. We subsequently
delineated this narrow exception to the general proscription of
collateral challenges as follows: “[A]n alien challenging a prior
removal [must] establish that (1) the removal 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
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the alien actual prejudice.” United States v. Lopez-Ortiz, 313
F.3d 225, 229 (5th Cir. 2002); accord United States v. Hernandez-
Avalos, 251 F.3d 505, 507 (5th Cir. 2001). This formulation was
subsequently codified in 8 U.S.C. § 1326(d). The United States
argues that Appellant cannot establish that the underlying
proceeding was “fundamentally unfair.” We agree.
We review de novo Appellant’s claim regarding the underlying
removal order. See United States v. Estrada-Trochez, 66 F.3d
733, 735 (5th Cir. 1995). A proceeding is fundamentally unfair
when it violates the defendant’s procedural due process rights.
See Lopez-Ortiz, 313 F.3d at 230; see also United States v.
Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003). “The Supreme
Court has stated that due process requires that an alien who
faces deportation be provided (1) notice of the charges against
him, (2) a hearing before an executive or administrative
tribunal, and (3) a fair opportunity to be heard.” Lopez-Ortiz,
313 F.3d at 230. Appellant does not claim that his removal
proceeding lacked such procedural processes. Thus, we affirm
Appellant’s conviction.
Appellant argues that he was sentenced in violation of
United States v. Booker, 125 S. Ct. 738 (2005). The United
States agrees, concedes that Appellant preserved the error, and
recognizes that remand and resentencing in accordance with Booker
and United States v. Mares, 402 F.3d 511 (5th Cir. 2005), is
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appropriate. In light of this concession, we remand for
resentencing.
III. Conclusion
Accordingly, we AFFIRM Appellant’s conviction, VACATE his
sentence and REMAND to the district court for resentencing.
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