United States v. Garcia-Peregrina

72 F. App'x 522

Opinion

MEMORANDUM

Footnotes

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The district court did not err in finding that Marco Antonio Garcia-Peregrina’s underlying deportation could not be colateraly attacked in an action for ilegal reentry after deportation. 8 U.S.C. § 1326(a), (d). The district court also correctly calculated his criminal history score. This court reviews de novo a colateral chalenge to an underlying deportation. United States v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th Cir.2002). A district court’s determination that a prior conviction counts for purposes of the criminal history score under the Sentencing Guidelines is also reviewed de novo. United States v. Lopez-Pastrana, 244 F.3d 1025, 1027 (9th Cir.2001).

In a criminal proceeding for ilegal reentry after deportation,

an alen may not chalenge the valdity of the deportation order ... unless the alen demonstrates that-

(1) the alen exhausted any administrative remedies that may have been avalable to seek relef against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alen of the opportunity for judicial review; and

(3) the entry of the order was fundamentaly unfair.

8 U.S.C. § 1326(d).

Garcia-Peregrina was not deprived of the opportunity for judicial review and therefore cannot collaterally attack the underlying deportation. 8 U.S.C. § 1326(d)(2). Garcia-Peregrina withdrew his pending appeal from this court, thereby waiving the right to continued judicial review. See United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

Additionally, Garcia-Peregrina was not deprived of judicial review through retroactive application of AEDPA § 440(d) in his deportation proceedings. The rule announced by this court one and one-half years after Garcia-Peregrina’s deportation that AEDPA § 440(d) cannot apply to “deportation cases pending on the date AEDPA became law,” does not authorize a collateral challenge to the underlying deportation. Magana-Pizano v. I.N.S., 200 F.3d 603, 611 (9th Cir.1999). This court recently stated, “as Magana-Pizano announced a new rule, it does not apply retroactively on collateral review.” Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1171 (9th Cir.2001).

The district court did not err in assigning one point to Garcia-Peregrina’s criminal history score for a prior misdemeanor assault. U.S. Sentencing Guidelines Manual §§ 4A1.1, 4A1.2. The offense counts because “assault is a serious crime which is normally counted under Guideline 4A1.2.” United States v. Kemp, 938 F.2d 1020, 1024 n. 4 (9th Cir.1991).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.