United States v. Sergio Ortiz-Ledezma

MEMORANDUM

Sergio Ortiz-Ledezma appeals the district court’s denial of his motion to dismiss the indictment charging him with unlawful reentry after a prior deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Ortiz-Ledezma argues that his pri- or deportation was invalid. However, a defendant charged under 8 U.S.C. § 1326 cannot collaterally attack his deportation order if he did not exhaust his administrative remedies in the deportation proceedings. United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir.2000). “Accordingly, a valid waiver of the right to appeal a deportation order precludes a later collateral attack.” Id. (citing United States v. Estrada-Torres, 179 F.3d 776, 780 (9th Cir.1999)).

A waiver of the right to appeal is valid if it is “considered and intelligent.” United States v. Mendoza-Lopez, 481 U.S. 828, 840 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). The government bears the burden of proving the validity of Ortiz-Ledezma’s waiver. United States v. Ramos, 623 F.3d 672, 680 (9th Cir.2010). Although we are to “indulge every reasonable presumption against waiver,” United States v. Lopez-Vasquez, 1 F.3d 751,…