United States v. Fernando Barrera-Samano

MEMORANDUM

Defendant Fernando Barrera-Samano appeals from the district court’s denial of his motion to dismiss the indictment charging him under 8 U.S.C. § 1326 for illegally reentering the United States after the government removed him in 2002. Defendant argues that the indictment improperly relied on his 2002 removal order, because his 2002 removal proceedings did not provide him with due process under United States v. Mendoza-Lopez, 481 U.S. 828, 838 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). Reviewing de novo, United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001), we dismiss this appeal.

After the district court denied Defendant’s motion to dismiss, Defendant unconditionally pleaded guilty to the charge. Subject to few exceptions, “when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 , 109 S.Ct. 757 , 102 L.Ed.2d 927 (1989). Even when a person’s guilty plea does not prevent him from challenging the legality of his conviction, his challenge may proceed only if it…