Gomez-Funez

MEMORANDUM **

Elias Gomez-Funez (“Gomez”) appeals from his conditional guilty plea and sentence for illegal re-entry pursuant to 8 U.S.C. § 1326 . The parties are familiar with the facts underlying this appeal, so we need not repeat them here. This court has jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

We review de novo the denial of a motion to dismiss an indictment on due process grounds. United States v. Eshkol, 108 F.3d 1025, 1027 (9th Cir.1997). We *603 review de novo the denial of a defendant’s collateral attack on a deportation proceeding. Un ited States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir.2000). We review a claim under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), for plain error when raised for the first time on appeal. United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir .2001).

Gomez contends that the district court erred by denying his motion to dismiss the indictment because, as an alien with an aggravated felony conviction, he was barred from judicial review of the underlying deportation order pursuant to 8 U.S.C. § 1252 (a)(2)(C) and therefore that deportation cannot be used as the basis for his…