FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-1446 (D.C. No. 1:18-CR-00150-MSK-GPG-1) JOSE ALFREDO FLORES, a/k/a Jose (D. Colo.) Alfredo Flores-Quezada, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________ Jose Flores appeals his conviction for illegal re-entry in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I Flores, a native and citizen of Mexico, became a lawful permanent resident of the United States in 1995. In 2009, he was convicted of felony vehicular eluding in violation * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. of C.R.S. § 18-9-116.5. In 2012, an immigration judge ordered Flores removed, concluding that vehicular eluding was an aggravated felony under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F). The removal order indicates that his appeal was due on April 27, 2012. Flores did not timely appeal. After returning to the United States without reapplying for admission, Flores was apprehended and charged with illegal re-entry after a prior deportation. At that point, he appealed his 2012 removal to the Board of Immigration Appeals (“BIA”), arguing that his deportation was invalid because vehicular eluding is not an aggravated felony under Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The BIA dismissed his appeal as untimely. Flores filed a motion to dismiss the indictment in this case, arguing that because vehicular eluding is not an aggravated felony under Dimaya, his deportation cannot be the predicate for an illegal re-entry conviction. A magistrate judge recommended the denial of his motion to dismiss because by failing to file a timely appeal of his 2012 removal order, Flores failed to exhaust administrative remedies under § 1326(d)(1). Over Flores’ objections, the district court adopted the magistrate’s recommendation. Flores pled guilty but retained the right to appeal the denial of his motion. The court sentenced him to a term of 22 months’ imprisonment and three years of supervised release. Flores appealed. II Flores raises a collateral attack to his prior deportation order. We review the legal sufficiency of a prior removal order de novo. See United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019). Under § 1326(d), a defendant who collaterally attacks 2 a prior deportation order during criminal proceedings must demonstrate “(1) that he exhausted all administrative remedies available to contest the previous removal order, (2) that ...
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