FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 18, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-6198 (D.C. No. 5:18-CR-00078-C-1) ROGELIO GARCIA-GALVAN, a/k/a (W.D. Oklahoma) Rogelio Galvan Garcia, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before McHUGH, KELLY, and MORITZ, Circuit Judges. _________________________________ Rogelio Garcia-Galvan appeals from his conviction for illegal re-entry into the United States after removal in violation of 8 U.S.C. § 1326(a), for which the district court sentenced him to twenty-nine months’ imprisonment. Mr. Garcia-Galvan pleaded guilty to the charge of illegal re-entry but, prior to sentencing, moved to withdraw his guilty plea, arguing the Department of Homeland Security’s 2008 * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rules of Appellate Procedure at 32.1 and Tenth Circuit Rule 32.1. Notice to Appear was invalid and thus voided the immigration court’s 2008 removal order for lack of jurisdiction. The district court denied the motion to withdraw, holding Mr. Garcia-Galvan was not entitled to relief because he had waived the right to notice and appeal in his 2008 proceedings and his challenge to those proceedings did not satisfy any of the collateral attack conditions of 8 U.S.C. § 1326(d). Mr. Garcia-Galvan timely appealed. We hold that Mr. Garcia-Galvan’s challenge is subject to the collateral attack conditions of 8 U.S.C. § 1326(d) and fails because he has not satisfied the first condition set forth in § 1326(d)(1). Therefore, we AFFIRM the district court. I. BACKGROUND In 2003, Mr. Garcia-Galvan arrived in the United States without being admitted or paroled. Five years later, on May 12, 2008, the Department of Homeland Security (“DHS”) served Mr. Garcia-Galvan with a Form I-862 notice to appear (“2008 NTA”), which ordered him to appear for his removal hearing “on a date to be set at a time to be set.” See ROA, Vol. I at 35–36. The same day, Mr. Garcia-Galvan filed a Stipulated Request for Order and Waiver of Hearing (“2008 Waiver”), in which he “agreed to a written order for removal as a final disposition” and “waived his right to appeal the order of removal.” Id. at 42. On May 14, 2008, an immigration judge reviewed the 2008 Waiver and ordered Mr. Garcia-Galvan removed (“2008 Order”). Mr. Garcia-Galvan was removed from the United States shortly thereafter. Mr. Garcia-Galvan re-entered the United States on January 25, 2011, and, as a result, was convicted in the Western District of Oklahoma of illegal re-entry pursuant 2 to 8 U.S.C. § 1326(a). The district court ...
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