217 F.3d 806 (9th Cir. 2000), 99-50596, United States v. Garza-Sanchez

Docket Nº:99-50596
Citation:217 F.3d 806
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAURILIO GARZA-SANCHEZ, Defendant-Appellant.
Case Date:July 07, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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217 F.3d 806 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MAURILIO GARZA-SANCHEZ, Defendant-Appellant.

No. 99-50596

United States Court of Appeals, Ninth Circuit

July 7, 2000

Argued and Submitted May 5, 2000--Pasadena, California

Page 807

Korey House, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Krystal N. Denley, Assistant United States Attorney, Los Angeles California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CR-98-779-LGB

Before: J. Clifford Wallace, Stephen S. Trott, and Ron Gould, Circuit Judges.

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GOULD, Circuit Judge:

Maurilio Garza-Sanchez ("Garza") appeals his conviction of being an alien found in the United States following deportation, in violation of 8 U.S.C. S 1326. He contends that the underlying deportation was unlawful and cannot be used to support his conviction under S 1326. We have jurisdiction pursuant to 28 U.S.C. S 1291. We hold that Garza validly waived the right to appeal his deportation, and cannot collaterally attack it now. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1994, Garza was convicted of possession of a controlled substance, robbery, and possession of methamphetamine for sale. On November 7, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause, commencing deportation proceedings against Garza on the basis of his 1994 conviction of possession of methamphetamine for sale. At his final deportation hearing on June 1, 1998, Garza admitted the allegations against him set forth in the Order to Show Cause, and was ordered deported. The immigration judge ("IJ") advised Garza of his right to appeal, and Garza waived it. He was deported the following day.

Less than three weeks later Garza was found in Los Angeles County. He was indicted for violation of 8 U.S.C. S 1326 on July 28, 1998. Garza moved to dismiss the indictment on the ground that the underlying deportation was unlawful. The district court denied Garza's motion, concluding that he had waived the right to appeal the deportation order, and that he therefore could not collaterally attack the deportation in this prosecution under S 1326. Garza thereafter pleaded guilty, reserving his right to challenge the denial of his motion to dismiss the indictment. This appeal followed.

DISCUSSION

We review de novo a district court's decision to deny a defendant's collateral attack on a deportation proceeding. United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992) (en banc). A defendant charged under 8 U.S.C.S 1326 may not collaterally attack the underlying deportation order if he or she did not exhaust administrative remedies in the deportation proceedings, including direct appeal of the deportation order. See United States v. Estrada-Torres, 179 F.3d 776, 780 (9th Cir. 1999); see also 8 U.S.C.S 1326(d). Accordingly, a valid waiver of the right to appeal a deportation order precludes a later collateral attack. See EstradaTorres, 179 F.3d at 780. Due process requires that, to be valid, such a waiver must be "considered and intelligent." United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987).

Here, it is undisputed that Garza waived the right to appeal his order of deportation. Garza argues, however, that his waiver was not considered and intelligent because the IJ failed to inform him of possible challenges to his deportation before Garza decided to waive his right to appeal. We review de novo the validity of a waiver of appellate rights. See United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995). We conclude that the IJ did all that the law required. Garza's waiver was fully informed, considered and intelligent, and therefore was valid.

A

Garza's argument is based primarily on 8 C.F.R. S 240.49(a),1 which provides, in part:

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The immigration judge...

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