Garcia

MEMORANDUM **

Jesus Angel Garcia, a citizen of Mexico, petitions for review of the district court’s denial of his motion to dismiss the indictment against him and the district court’s subsequent imposition of an eighty-four month sentence. We deny the petition.

We review de novo the denial of a collateral attack on a prior deportation order based on alleged due process defects. United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir.2002). An attack based on a sentence violating Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) is also reviewed de novo. United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002).

A defendant collaterally attacking a deportation order must show: (1) exhaustion of remedies; (2) deprivation of an opportunity for judicial review; and (3) that the entry of the removal order was “fundamentally unfair.” 8 U.S.C. § 1326 (d). A removal process is “fundamentally unfair” if (1) the alien’s due process rights were violated by defects in his removal hearing, and (2) he suffered prejudice. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004).

Garcia’s due process rights were violated in his 1994 deportation…