FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT February 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-6192 (D.C. No. 5:18-CR-00114-R-1) FREDDY HERRERA-RIVAS, a/k/a Fredy (W.D. Okla.) Herrera, a/k/a Rubio Herrera, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. _________________________________ Freddy Herrera-Rivas pleaded guilty to unlawfully reentering the United States after removal under 8 U.S.C. § 1326(a). Herrera-Rivas later moved to withdraw his guilty plea under Fed. R. Crim. P. 11, contending his original removal order was invalid. The district court denied the motion to withdraw. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. BACKGROUND Herrera-Rivas is a native and citizen of Mexico. On October 27, 2008, the United States Department of Homeland Security served Herrera-Rivas with a Notice to Appear (NTA), alleging he was subject to removal and ordering him to appear before an immigration judge (IJ) at a date and time “to be set.” R., Vol. 1 at 20. Herrera-Rivas signed the NTA, requesting an immediate hearing and waiving his right to a 10-day period before his appearance. Herrera-Rivas also signed a “Stipulated Request for Order [and] Waiver of Hearing,” in which he confirmed that: (1) he had been served with the NTA; (2) he waived his right to a hearing and requested his proceedings be conducted on the record; (3) he admitted the facts as alleged in the NTA; (4) he conceded he was subject to removal; and (5) he did not wish to seek relief from removal. Id. at 43-46. On November 12, 2008, an IJ ordered his removal, and Herrera-Rivas was removed two days later. Herrera-Rivas returned to the United States in 2010 and was removed in 2012, without objection, based on the 2008 removal order. He returned to the United States again in 2013 and was indicted in 2018 of illegally reentering after removal in violation of 8 U.S.C. § 1326(a). Herrera-Rivas initially pleaded guilty but, six weeks later, moved to withdraw his plea on the ground “that an absolute defense to the Indictment had been overlooked.” Id. at 9. In a proposed motion to dismiss attached to the motion to withdraw, Herrera-Rivas sought to collaterally attack the validity of his 2008 removal order under 8 U.S.C. § 1326(d). Specifically, in his proposed motion to dismiss, Herrera-Rivas contended his 2008 removal order was void 2 because his 2008 ...
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