     Case: 13-30278      Document: 00512527740         Page: 1    Date Filed: 02/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 13-30278                             February 10, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BENITO SERRANO-VERA, also known as Benito Cerrano, also known as
Benito Cerrno, also known as Benito Vera Serrano, also known as Ratael Vera,
also known as Benito Vera Cerrano, also known as Rafael Hernandez, also
known as Benito Serrano,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CR-128-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Benito Serrano-Vera entered a conditional guilty plea for having been
found unlawfully in the United States following removal and was sentenced to
46 months of imprisonment. He now seeks to appeal the denial of his motion




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-30278

to dismiss the indictment on the ground that he never received notice of his
deportation hearing and thus the underlying deportation order was invalid.
      We review the denial of a motion to dismiss an indictment and the
underlying constitutional claims de novo. See United States v. Villanueva-
Diaz, 634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for illegal reentry
under 8 U.S.C. § 1326 may collaterally attack the underlying removal order.
United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). To succeed, he
would need to establish that (1) the removal hearing was fundamentally
unfair, (2) the proceeding improperly deprived him of the opportunity for
judicial review, (3) the procedural deficiencies caused him actual prejudice, and
(4) he exhausted any administrative remedies that were available to challenge
the order. United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002);
§ 1326(d).
      As noted by the district court, Serrano-Vera could have filed a motion to
reopen the deportation proceedings, pursuant to 8 U.S.C. § 1229a(b)(5)(C), the
current rule, or 8 U.S.C. § 1252b(c)(3)(B), the identically phrased 1994 rule.
However, during the 15-year period from the date of his original order of
removal until his arrest in the instant proceeding, Serrano-Vera failed to do
so—despite the fact that, from 2004 through 2010, he was removed from the
United States via reinstatement of the original order of removal on five
separate occasions. Serrano-Vera therefore has failed to establish that he
exhausted his administrative remedies. In addition, Serrano-Vera did not
show that there was a reasonable likelihood that but for the errors complained
of he would not have been deported. See United States v. Mendoza-Mata, 322
F.3d 829, 832 (5th Cir. 2003). He does not say what evidence or arguments
might have been made to counter the basis of his deportation, nor does he
provide any authority, statutory or caselaw, suggesting that he was eligible for



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                                No. 13-30278

relief from deportation. Nor does he identify what that relief would have been.
Accordingly, Serrano-Vera failed to show that the alleged procedural
deficiencies actually prejudiced him. See id.
      Because Serrano-Vera failed to satisfy the requirements to collaterally
challenge his deportation proceedings, his original order of removal order may
permissibly serve as a basis for his conviction under § 1326. See United States
v. Lopez-Vasquez, 227 F.3d 476, 485 (5th Cir. 2000). Thus, the district court
did not err in denying Serrano-Vera’s motion to dismiss the indictment. See
id. at 485-86.
      AFFIRMED.




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