FILED
NOT FOR PUBLICATION MAR 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50253
Plaintiff - Appellee, D.C. No. 3:11-cr-04832-AJB-1
v.
MEMORANDUM *
ANTONIO LOPEZ-VALLE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted March 6, 2013 **
Pasadena, California
Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
Antonio Lopez-Valle appeals his conviction of attempted entry after deportation
in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and
affirm.
Lopez argues that the district court erred in denying his motion to dismiss the
indictment, which collaterally attacked the deportation order. “To succeed in such a
challenge . . . an alien must demonstrate that: ‘(1) the alien exhausted any
administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the
alien of the opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair.’” United States v. Reyes-Bonilla, 671 F.3d 1036, 1042-43 (9th
Cir. 2012) (quoting 8 U.S.C. § 1326(d)).
Even assuming arguendo that Lopez could satisfy the first two requirements,
he cannot meet the third. To show fundamental unfairness, Lopez must establish
prejudice. United States v. Bustos-Ochoa, ___ F.3d ___, 2012 WL 6579556, at * 2
(9th Cir. Dec. 18, 2012). Because he has been convicted of an aggravated felony he
cannot do so. Id. at *2-3.
AFFIRMED.
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