USCA4 Appeal: 19-4769 Doc: 43 Filed: 12/21/2022 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4769 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EFRAIN AVILA-FLORES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:18-cr-00152-JAG-1) Submitted: August 30, 2022 Decided: December 21, 2022 Before HARRIS and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Alexandria, Virginia, Joseph S. Camden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Aidan Grano-Mickelsen, Assistant United States Attorney, Matthew L. Cofer, Special Assistant United States Attorney, Alexandria, Virginia, Jessica D. Aber, United States Attorney, Heather Hart Mansfield, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 19-4769 Doc: 43 Filed: 12/21/2022 Pg: 2 of 3 PER CURIAM: Efrain Avila-Flores, a native and citizen of Guatemala, pled guilty to one count of illegal reentry after removal in violation of 8 U.S.C. § 1326(a), reserving his right to appeal the denial of his second motion to dismiss his indictment. We affirm. A collateral attack on a removal order in an illegal-reentry prosecution is allowed where “failures of due process in an immigration proceeding . . . would make it fundamentally unfair to rely on a removal order coming out of that proceeding.” United States v. Moreno-Tapia, 848 F.3d 162, 169 (4th Cir. 2017). To successfully attack an underlying removal order, a defendant must show the following: (1) he exhausted any administrative remedies that may have been available to challenge the order of removal; (2) he was effectively deprived of his right to judicial review of the removal order; and (3) the entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326(d); see United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). An order is fundamentally unfair if the defendant shows that “(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” El Shami, 434 F.3d at 664. In United States v. Fernandez Sanchez, No. 20-4061, 2022 WL 3589494, at *5–6 (4th Cir. Aug. 23, 2022), we declined to decide whether we review a district court’s ruling on a § 1326(d) motion to dismiss de novo, consistent with El Shami, 434 F.3d at 633, or whether we instead review the district court’s legal conclusions de novo but its factual findings for clear error, consistent with United States v. Lopez-Collazo, 824 F.3d 453, 460 (4th Cir. 2016). Here, as in Fernandez Sanchez, the 2 USCA4 Appeal: 19-4769 Doc: 43 Filed: 12/21/2022 Pg: 3 of 3 result is the same under either standard, so we again need not decide which standard …
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