Gonzalez-Garcia

MEMORANDUM

We affirm defendant Gerardo GonzalezGareia’s conviction under 8 U.S.C. § 1326 for being found in the United States after previously having been deported. He argues that his conviction must be reversed under United States v. Mendoza-Lopez, 481 U.S. 828 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987) because there is insufficient evidence that his 1996 deportation comported with due process.

The government first contends that we are prohibited by 8 U.S.C. § 1326 (d) from reaching the merits of his argument because Gonzalez-Garcia failed to appeal the 1996 deportation. This is without merit. The government has offered no evidence to establish that Gonzalez-Garcia made a “considered and intelligent” waiver of his right to appeal. See United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). We have repeatedly emphasized that section 1326(d) cannot apply in the absence of a valid waiver:

United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir.2001) (internal citation omitted). See also United States v. Estrada-Torres, 179 F.3d 776, 780 (9th Cir.1999), overruled on other grounds, United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc).

However, we reject…