Medina-Ibarra

MEMORANDUM **

Appellant Amadeo Medina-Ibarra appeals from his conviction of being a deported alien found in the United States in violation of 8 U.S.C. § 1326 , and from the sentence of 70 months. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a) and we affirm.

Medina-Ibarra attempts to evade the force of § 1326(d) by insisting that his challenge is not a collateral attack of the underlying deportation proceeding, but a challenge to the statutory elements of a § 1326(a) offense — that the government failed to prove the required element that he had previously been “deported.” Medina-Ibarra claims he was not “deported” for purposes of 8 U.S.C. § 1326 because he was physically removed to Mexico by federal agents before he could appeal his deportation order. He relies on United States v. Fermin-Rodriguez, 5 F.Supp.2d 157 (S.D.N.Y.1998), for support. While it is true that the court there held that the defendant had not been “deported,” id. at 158 , the case is distinguishable because there, the defendant had been removed “without a facially valid deportation order.” Id. at 164 . The court distinguished that situation from one in which there is an “enforceable…