Zarate-Martinez

The appeal by Jose Juan Zarate-Martinez from judgment and sentence for a violation of 8 U.S.C. § 1326 (b)(1), reentry after deportation subsequent to a felony conviction, requires us to decide if his due process rights were violated because he had no meaningful opportunity for judicial review of the underlying deportation order and whether he was denied equal protection because one of the cocaine convictions underlying his deportation resulted from California’s unlawful failure to provide him with drug rehabilitation treatment. He entered a conditional guilty plea subject to our review of his claims of constitutional violations.

We must consider also the cross-appeal of the government that the district court erred in reducing the offense from an “aggravated felony” charge under § 1326(b)(2) to the lesser included reentry offense under § 1326(b)(1). We affirm the judgment on Zarate-Martinez’ appeal, but on the cross-appeal we vacate the judgment and sentence and remand with a direction that the district court reinstate the aggravated felony charge under § 1326(b)(2) and permit Zarate-Mar-tinez to plead anew to the reinstated indictment.

I.

Zarate-Martinez first entered the…