                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUN 28 1999

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 98-1335
 v.                                                 (D.C. No. 98-CR-119-D)
                                                           (D. Colo.)
 JAMIE SOSA-RUBIO,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See F ED . R. A PP . P. 34(a); 10th Cir. R. 34.1(G).

      Jaime Sosa-Rubio entered a guilty plea to unlawfully reentering the United

States after deportation for an aggravated felony in violation of 8 U.S.C. §§


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1326(a) and (b)(2). He appeals the district court’s denial of his motion to dismiss

the indictment and raises an issue regarding his sentence. Counsel appointed to

represent defendant on appeal filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967). We dismiss the appeal under Anders.

      Mr. Sosa-Rubio, a Mexican citizen, was convicted and sentenced in state

court for possession of LSD, a felony under Colorado Law. In 1996 upon

completion of his sentence and following a group deportation hearing, Mr. Sosa-

Rubio was deported to Mexico. In 1998, he was indicted for illegally reentering

the United States. He moved to dismiss the indictment, arguing his 1996

deportation hearing did not comport with due process because he was not advised

of the right of judicial review. While the district court agreed that the 1996 group

deportation implicated procedural errors, the court denied the motion to dismiss

because Mr. Sosa-Rubio failed to establish prejudice stemming from the

proceedings.

      Mr. Sosa-Rubio has asked his counsel to appeal this dismissal and to

challenge the correctness of his sentence. Anders holds that if counsel finds a

case to be wholly frivolous after conscientious examination, he should so advise

the court and request permission to withdraw. Counsel must in addition submit to

both the court and his client a brief referring to anything in the record arguably

supportive of the appeal. The client may then raise any points he chooses, and the


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appellate court thereafter undertakes a complete examination of all proceedings

and decides whether the appeal is in fact frivolous. If it so finds, it may grant

counsel’s request to withdraw and dismiss the appeal. See Anders, 386 U.S. at

744.

       In his Anders brief, counsel first contends the district court erred in denying

the motion to dismiss the indictment based on a failure to show prejudice. The

argument is that the settled Tenth Circuit law requiring a showing of prejudice to

establish fundamental unfairness in a collateral challenge to an underlying

immigration proceeding incorrectly interpreted the Supreme Court’s holding in

United States v. Mendoza-Lopez, 481 U.S. 828, 839-40 (1987). The defense

contends that no showing of prejudice was required under Mendoza-Lopez and

Mr. Sosa-Rubio’s indictment should therefore have been dismissed despite lack of

prejudice because he proved he was deprived of a right to appeal. The law in this

circuit clearly states that where a defendant wishes to successfully collaterally

challenge a deportation hearing effectively foreclosing his right to a direct appeal,

the defendant must first show “fundamental unfairness,” which requires a

showing of prejudice. United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th

Cir. 1998); United States v. Aranda-Hernandez, 95 F.3d 977, 980 (10th Cir.

1996); United States v. Marez-Valeta, 26 F.3d 992, 998 (10th Cir. 1994); see also




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Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990). 1 Since “this panel is not an

en banc panel and, thus, is not in the business of overturning prior panels’

decisions,” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998), we

may not adopt defendant’s position in direct contravention of a host of this

court’s prior decisions interpreting Mendoza-Lopez. 2 Because Mr. Sosa-Rubio

has never shown prejudice, his motion to dismiss the indictment was properly

denied. In light of clear law contrary to his position, his appeal of this issue is

frivolous.

      The second argument is that Mr. Sosa-Rubio’s conviction for possession of

LSD, a state felony, is only considered a federal misdemeanor and Mr. Sosa-

Rubio did not therefore commit an aggravating felony for federal sentencing

purposes. For purposes of immigration offenses, the term “aggravated felony” is

defined in 8 U.S.C. § 1101(a)(43)(B) to include “a drug trafficking crime (as

      1
       Congress adopted a similar test in 8 U.S.C. § 1326, applicable to criminal
proceeding instituted after April 24, 1996. Like here, the statute requires a
showing of both fundamental unfairness and a deprivation of judicial review. 8
U.S.C. § 1326(d). We have explicitly held this standard to be constitutionally
sound. See Wittgenstein, 163 F.3d at 1170.
      2
        Moreover, all other circuits considering the issue appear to similarly
interpret Mendoza-Lopez as requiring a showing of prejudice. See United States
v. Loaisiga, 104 F.3d 484, 487 (1st Cir. 1997); United States v. Fares, 978 F.2d
52, 57 (2d Cir. 1992); United States v. Encarnacion-Galvez, 964 F.2d 402, 406
(5th Cir. 1992); United States v. Espinoza-Farlo, 34 F.3d 469,471 (7th Cir. 1994);
United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989); United States
v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc); United States v.
Holland, 876 F.2d 1533, 1536 (11th Cir. 1989).

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defined in section 924(c) of Title 18).” Section 924(c)(2) in turn defines such a

crime as “any felony punishable under the Controlled Substances Act,” and the

Controlled Substances Act directs that a felony means “any Federal or State

offense classified by applicable Federal or State law as a felony.” 21 U.S.C. §

802(13) (emphasis added). Thus, a state felony conviction may constitute an

aggravated felony for purposes of 8 U.S.C. § 1326(b)(2). See United States v.

Valenzuela-Escalante, 130 F.3d 944 (10th Cir. 1997) (linking a state drug

trafficking crime to an aggravated felony for immigration purposes).

Accordingly, Mr. Sosa-Rubio’ attempt to reclassify his LSD conviction as outside

the scope of an aggravated felony is fruitless.

      After review of the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The appeal is therefore

DISMISSED and counsel’s motion to withdraw is GRANTED.



                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Chief Judge




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