Andrade-Rivera

MEMORANDUM ***

Geovani Andrade-Rivera collaterally attacks the deportation order underlying his conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 , and challenges his sentence under United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). We affirm Andrade’s conviction but remand his sentence pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

To successfully challenge the deportation order underlying his conviction for violating 8 U.S.C. § 1326 , Andrade must demonstrate that “ ‘(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.’ ” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001) (citation omitted). Andrade’s challenge fails because even if we were to assume that the immigration judge violated Andrade’s due *965 process rights, Andrade suffered no prejudice.

To establish prejudice, Andrade must show that he had “a ‘plausible’ ground for relief’ under section 212(h) “if he had sought such relief at the time of his underlying deportation proceedings.” Id. at 1185 (citation…