Grimaldo-Tavarez

MEMORANDUM **

Appellant Grimaldo-Tavarez, formerly a legal permanent resident in the United States pled guilty to, and was convicted of, being a deported alien in the United States in violation of 8 U.S.C. § 1326 and was sentenced to 18 months imprisonment. His guilty plea was conditioned on retaining his right to the present appeal challenging the district court’s denial of his motion to dismiss the indictment and its calculation of his sentence.

Appellant argues that his current indictment should be dismissed because the July 2001 deportation order that supported it was obtained in violation of his due process rights under the Fifth Amendment. He contends that the Immigration Judge gave him erroneous legal advice. He seeks to attack the decision despite his waiver of the right to appeal.

He relies on United States v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir.2002), in which this court held that an alien's waiver of his right to appeal that is based upon an IJ’s erroneous advice is not knowing and intelligent. Id. at 950 . His reliance on Ahumada-Aguilar is misplaced, however, because in this case the IJ gave no advice, but rather properly explained the rationale for her…