                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3111
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

             Ruben Perales Avila, also known as Ruben Parales Avila

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                              Submitted: April 10, 2013
                                Filed: July 30, 2013
                                  [Unpublished]
                                  ____________

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
                          ____________

PER CURIAM.

      Ruben Avila appeals from the district court’s1 order denying his motion to
dismiss an indictment charging him with unlawful entry after deportation in violation
of 8 U.S.C. §§ 1326(a) and (b)(2). He also appeals his sentence. We affirm.


      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
                                   I. Background

      Avila, a native of Mexico, entered the United States in 1973 at age three.
Thereafter, he was convicted of several criminal offenses in Iowa, including a 1989
conviction for fourth-degree criminal mischief and fourth-degree theft; a 1991
conviction for indecent acts with a child; a 1992 conviction for third-degree sexual
abuse; and a 1993 conviction for third-degree harassment.

      The Immigration and Naturalization Service (INS) issued Avila an order to
show cause in March 1995, alleging that Avila was subject to deportation for
committing an aggravated felony and two crimes of moral turpitude. In January 1996,
Avila and his attorney appeared before an immigration judge (IJ). The IJ struck the
aggravated felony allegation, but found Avila deportable for having been convicted
of two crimes of moral turpitude.

      Thereafter, Avila sought relief from deportation under former § 212(c) of the
Immigration and Naturalization Act, 8 U.S.C. § 1182(c) (1994) (repealed 1996).
Former § 212(c) allowed the Attorney General to grant discretionary waivers of
deportation to aliens who met certain criteria. See Johnson v. Holder, 564 F.3d 95,
97 (2d Cir. 2009). In April 1996, Congress passed the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. The
AEDPA amended § 212(c) to preclude discretionary relief for aliens convicted of a
broad set of crimes, including aggravated felonies.2 I.N.S. v. St. Cyr, 533 U.S. 289,
297 (2001). Avila appeared with counsel for a May 1996 hearing, during which he
withdrew his § 212(c) application and accepted a final deportation order to Mexico.


      2
       Later in 1996, Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009. IIRIRA
repealed § 212(c) altogether and “replaced it with a new section that gives the
Attorney General the authority to cancel removal for a narrow class of inadmissible
or deportable aliens[.]” I.N.S. v. St. Cyr, 533 U.S. 289, 297 (2001). This section also
precludes relief for any alien convicted of an aggravated felony. Id.

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       In August 1996, Avila filed a motion to reinstate his § 212(c) application. He
asserted that he had withdrawn his previous application because the IJ had opined that
the AEDPA’s preclusion of § 212(c) relief for aliens convicted of an aggravated
felony applied immediately and because the INS indicated that it would seek to
reinstate the aggravated felony charge, thereby leaving Avila with “no avenue upon
which to pursue relief.” Avila argued that in light of the BIA’s decision that the
AEDPA did not apply to § 212 applications pending on the AEDPA’s effective date,
In re Soriano, 21 I. & N. Dec. 516 (BIA 1996), he should be allowed to reopen his
application. Avila withdrew his motion to reinstate his application after the INS filed
an opposition noting that the Attorney General had vacated the In re Soriano decision.3
Avila was deported to Mexico in July 1997.

       In 2000, Avila reentered the United States by claiming that he was a United
States citizen. Avila was indicted in 2002 for unlawful entry after deportation and for
false representation of United States citizenship. He pleaded guilty to both charges
and was sentenced to 71 months’ imprisonment in 2003. He did not challenge the
validity of his underlying deportation order. After finishing his sentence, Avila was
deported in 2008.

       Sometime thereafter, Avila reentered the United States. He was convicted of
several crimes in Iowa in 2009 and was sentenced to a term of imprisonment. In 2011,
as set forth above, a grand jury charged Avila with unlawful entry after deportation.
Avila filed a motion to dismiss the indictment, arguing that the underlying 1996
deportation order was invalid under 8 U.S.C. § 1326(d) and that the government was


      3
        The Supreme Court eventually reversed the Attorney General’s decision,
holding that “§ 212(c) relief remains available for aliens . . . whose convictions were
obtained through plea agreements and who, notwithstanding those convictions, would
have been eligible for § 212(c) relief at the time of their plea under the law then in
effect.” St. Cyr, 533 U.S. at 326.


                                         -3-
thus unable to prove an essential element of the crime. The district court denied
Avila’s motion, finding: 1) that Avila had failed to exhaust his administrative
remedies; 2) that Avila had not demonstrated that he was deprived of his opportunity
for judicial review; and 3) that the underlying deportation order was not
fundamentally unfair. Avila then pleaded guilty but preserved the right to appeal the
denial of his motion to dismiss. The district court calculated a United States
Sentencing Guidelines (Guidelines) range of 77 to 96 months’ imprisonment. After
considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Avila to 96
months’ imprisonment.

                                    II. Discussion

                           A. Denial of Motion to Dismiss

       Avila argues that the district court erred in denying his motion to dismiss. “We
review the district court’s findings of fact for clear error, but we review de novo
whether those facts establish a due process defect.” United States v. Rodriguez, 420
F.3d 831, 833 (8th Cir. 2005). An alien may collaterally attack the validity of his
underlying deportation order if he demonstrates, among other things, that “the entry
of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). “An error cannot
render the proceedings fundamentally unfair unless it resulted in actual prejudice.”
Rodriguez, 420 F.3d at 834.

      Avila has failed to establish the requisite prejudice. “Prejudice in this context
means ‘a reasonable likelihood that but for the errors complained of the defendant
would not have been deported.’” United States v. Mendez-Morales, 384 F.3d 927,
931-32 (8th Cir. 2004) (quoting United States v. Perez-Ponce, 62 F.3d 1120, 1122
(8th Cir. 1995)). At the time of the 1996 deportation order, Avila had a significant
criminal history, including convictions for sexually abusing two thirteen-year-old
boys. Given this history, Avila would need to demonstrate “unusual or outstanding

                                         -4-
equities in order to receive relief” under § 212(c). United States v. Gonzalez-Valerio,
342 F.3d 1051, 1057 (9th Cir. 2003). Although Avila presented some evidence to
support his claim of prejudice, the district court correctly determined that he had failed
to establish that it was reasonably likely that the Attorney General would have
overlooked his serious crimes and granted him discretionary relief.

                                      B. Sentence

       Avila argues that his sentence is unreasonable because it is longer than
necessary to achieve the goals of sentencing. “We review the substantive
reasonableness of a sentence under a deferential abuse-of-discretion standard.” United
States v. Green, 691 F.3d 960, 966 (8th Cir. 2012). When, as here, the district court
imposes a sentence within the Guidelines range, “we presume it is substantively
reasonable.” United States v. Hoffman, 707 F.3d 929, 936 (8th Cir. 2013).

       Avila has failed to overcome the presumption of reasonableness afforded to his
within-Guidelines sentence. He argues that the district court should have imposed a
lesser sentence because he has spent most of his life in the United States and his
family resides here. The district court considered Avila’s cultural assimilation, but
found that it was outweighed by Avila’s criminal conduct. Avila also contends that
the district court gave undue weight to his 2003 top-of-the-Guidelines sentence for
unlawful entry after deportation. The district court properly considered Avila’s earlier
sentence, however, in determining that that sentence had not deterred him from
reentering illegally and that a sentence at the top of the Guidelines range was thus
necessary to deter future criminal conduct. See United States v. David, 682 F.3d
1074, 1077-78 (8th Cir. 2012) (“[T]he district court did not abuse its discretion in
considering David’s previous sentence as a ‘benchmark’ for finding the punishment
that is apparently necessary to deter David from repeating his criminal behavior.”).
We find no abuse of discretion in the district court’s imposition of sentence.



                                           -5-
                     III. Conclusion

The judgment and sentence are affirmed.
         _______________________________________




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