Gutierrez-Herrera

ORDER

The Memorandum disposition filed on December 8, 2000, is withdrawn and the attached disposition is filed simultaneously with this order.

Except as is reflected in the attached disposition, the panel has voted to deny appellant’s petition for rehearing. Judge T.G. Nelson and Judge W. Fletcher voted to deny the petition for rehearing en banc and Judge Bright so recommends.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are denied.

The panel will not entertain any further petitions for rehearing or rehearing en banc in this case.

MEMORANDUM

We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

A. Motion to Dismiss the Indictment

There were no defects in the underlying deportation proceeding charged in Gutierrez-Herrera’s indictment. Therefore, the district court did not err in denying his motion to dismiss the indictment.

Although the decision of the Immigration Judge (IJ) is not a model of clarity, we reject Gutierrez-Herrera’s claim that it was based solely on the…