Vargas-Sancen

MEMORANDUM **

Raul Vargas-Sancen was convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326 . He appeals the district court’s denial of his motion to dismiss the § 1326 charge, as well as his sentence. We affirm.

1. The district court properly denied Vargas-Sancen’s motion to dismiss the § 1326 charge. Vargas-Saneen contended that the 1997 deportation order underlying the § 1326 charge and conviction improperly characterized his prior conviction for violation of California Health and Safety Code § 11352 as an aggravated felony. Although 8 U.S.C. § 1326 (d)(1) prohibits challenges to the validity of a deportation order unless “the alien exhausted any administrative remedies that may have been available to seek relief against the order,” Vargas-Sancen’s failure to appeal the deportation order does not bar this challenge, as the government failed to meet its heavy burden of proving that his waiver of appeal was considered and intelligent, and thus valid. See United States v. Pallares-Galan, 359 F.3d 1088, 1097 (9th Cir.2004). That Vargas-Sancen *713 ultimately did not directly appeal the deportation order does not bear on whether his failure to do so was…