                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  November 28, 2006
                          FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                        _______________________                        Clerk

                              No. 04-20720
                        _______________________


                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

                     LEVER SANDER FUENTES-SALGADO,

                                                       Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. 4:04-CR-20-1


Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

PER CURIAM:*

           Lever   Sander    Fuentes-Salgado     was    convicted   after     a

stipulated bench trial of illegal reentry after deportation in

violation of 8 U.S.C. § 1326 and was sentenced to sixty-three

months of imprisonment and three years of supervised release.                He

appeals his conviction and sentence.

           Fuentes-Salgado argues that the statute authorizing the

streamlined reinstatement procedures, 8 U.S.C. § 1231(a)(5) (INA

§ 241(a)(5)), which became effective on April 1, 1997, as part of


     *
            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opinion should not be published and is not precedent except under the limited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.
the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), does not apply retroactively to him because he

reentered the United States before that date.     The Supreme Court

held in Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2425 (2006),

that § 1231(a)(5) “applies to those who entered before IIRIRA and

does not retroactively affect any right of, or impose any burden

on” the alien.

          Fuentes-Salgado argues that his 1998 reinstatement order

does not count as an order of removal as contemplated in the

illegal reentry statute.     He concedes that this court has pre-

viously rejected this argument in United States v. Nava-Perez, 242

F.3d 277, 279 (5th Cir. 2001), holding that a second removal based

on the reinstatement of a prior removal order is a separate removal

from the original removal order and makes the alien subject to the

enhanced penalty of § 1326(b)(2).    He raises the issue to preserve

it for further review by the Supreme Court.

          Fuentes-Salgado argues that the procedures used to effect

his 1998 reinstatement order did not comport with due process.   He

contends that the procedures employed pursuant to § 1231(a)(5) and

the implementing regulation, 8 C.F.R. § 241.8, were fundamentally

unfair and prejudiced him.   He contends that his conviction should

be overturned and the indictment dismissed.

          An alien who is prosecuted under § 1326 may, under

certain circumstances, challenge the deportation order that is used

as an element of the criminal offense.    United States v. Mendoza-

                                 2
Lopez, 481 U.S. 828, 838-39 (1987); United States v. Benitez-

Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999).                To challenge the

validity    of     an   underlying   deportation      order,    an       alien   must

establish that: (1) the prior deportation hearing was fundamentally

unfair; (2) the hearing effectively eliminated the alien’s right to

seek judicial review of the removal order; and (3) the procedural

deficiencies caused actual prejudice.              United States v. Lopez-

Vasquez, 227 F.3d 476, 483 (5th Cir. 2000). Additionally, an alien

may not challenge the validity of a deportation order unless he

exhausted available administrative remedies.                 See § 1326(d)(1);

see also Benitez-Villafuerte, 186 F.3d at 658 & n.8 (noting that

this   court's     interpretation      of    Mendoza-Lopez     effectively         was

codified in § 1326(d)).        If the alien fails to establish one prong

of the test, the others need not be considered.              See United States

v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002).                       This court

reviews de       novo   the   district   court’s   ruling      on    a   collateral

challenge    to     a    deportation     proceeding     when        constitutional

challenges are raised.         See Lopez-Vasquez, 227 F.3d at 481-82.

            This court would have had jurisdiction to consider a

petition for review of Fuentes-Salgado’s 1998 reinstatement order.

See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002)

(holding    that    reinstatement      orders   under   §    241(a)(5)       can   be

reviewed). Fuentes-Salgado argues that “any meaningful possibility

of review was precluded” because the procedures under § 1231(a)(5)

did not give him an opportunity to place information into the

                                         3
administrative record or to introduce documents.           He argues that

the restrictive rules governing the reinstatement procedure and its

limited review “deprived him of the opportunity for any effective

judicial review.”

          Fuentes-Salgado does not state what evidence he would

have submitted to the immigration officer, other than that bearing

on his plea for asylum.      The reinstatement statute provides a

restriction on removal to a country where the alien’s life or

freedom would   be   threatened.       §   1231(b)(3).     The   regulation

governing the reinstatement procedures allows an alien to present

evidence on a claim of asylum.     If the alien “expresses a fear of

returning to the country designated” in the reinstated removal

order, “the alien shall be immediately referred to an asylum

officer for an interview to determine whether the alien has a

reasonable fear of persecution or torture.”              § 241.8(e).    The

reinstatement procedures did not deprive Fuentes-Salgado of the

opportunity for judicial review.

          Because Fuentes-Salgado has not demonstrated that the

reinstatement procedures effectively eliminated his right to seek

judicial review of the removal order, this court need not address

the other factors required to mount a collateral attack on the

deportation order.    See Lopez-Ortiz, 313 F.3d at 231.

          Fuentes-Salgado argues that the district court committed

reversible error when it sentenced him pursuant to the mandatory

sentencing guidelines system held unconstitutional in United States

                                   4
v. Booker, 543 U.S. 220, 244-45 (2005), which requires that his

sentence be vacated and remanded for resentencing.                         He contends

that this    was     not    harmless   error          because   the   district    court

indicated that it would sentence him to a lesser sentence of

twenty-four months if the Sentencing Guidelines were held unconsti-

tutional.

            The Government concedes that although the Guidelines were

not held unconstitutional in their entirety, given the difference

between the guideline sentence of sixty-three months and the

alternative sentence of twenty-four months, it “cannot demonstrate

beyond a reasonable doubt that the district court’s incorrect view

of the Guidelines as mandatory was harmless.”                         Because of the

district court’s statements in connection with the imposition of

the alternative sentence, the Government has not shown harmless

error, and Fuentes-Salgado is entitled to have his sentence vacated

and this case remanded for resentencing in accordance with Booker.

See United States v. Walters, 418 F.3d 461, 464-66 (5th Cir. 2005);

United States v. Adair, 436 F.3d 520, 527-29 (5th Cir.), cert.

denied,   126   S.    Ct.    2306    (2006)       (vacating     and    remanding       for

resentencing for district court to consider Booker when imposing

alternative sentence).

            Fuentes-Salgado argues that the district court erred by

increasing his base offense level sixteen points under U.S.S.G.

§   2L1.2(b)(1)(A)(ii)       based     on       his   conviction      of   a   crime    of

violence.    This court held in Nava-Perez, 242 F.3d at 279, that a

                                            5
second removal based on the reinstatement of a prior removal order

is a separate removal from the original removal order and makes the

alien subject to the enhanced penalty of § 1326(b)(2).     Further,

the enhanced penalty also applies if the alien “unlawfully remained

in the United States” after a conviction of a crime of violence.

§ 2L1.2(b)(1).   Fuentes-Salgado does not argue that he did not

remain in the United States after his conviction for burglary of a

habitation in 1998, nor can he, because he was subsequently found

in the United States, leading to the present § 1326 conviction.

          Fuentes-Salgado argues that the Government’s refusal to

move for and the district court’s denial of the third point for

acceptance of responsibility under § 3E1.1(b) was erroneous.    The

district court did not err in not granting the third point because

the Government did not make the motion.    § 3E1.1(b).

          Fuentes-Salgado argues that the district court erred by

adding one point to his criminal history score under § 4A1.1(c)

based on his prior conviction for harboring a runaway child on

November 12, 1993.   He contends that his § 1326 offense occurred on

December 8, 2003, and so his November 1993 conviction could not be

counted because it was imposed more than ten years prior to the

current offense, according to § 4A1.2(e).

          This court has held that the offense of “being found” in

the United States illegally following deportation is a continuing

one which begins when a defendant reenters the United States

illegally and continues until the defendant is found in the United

                                  6
States.   See United States v. Reves-Nava, 169 F.3d 278, 280 (5th

Cir. 1999); United States v. Santana-Castellano, 74 F.3d 593, 598

(5th Cir. 1996).   Fuentes-Salgado admitted that he reentered in

1999. The district court did not err in counting Fuentes-Salgado’s

1993 conviction in his criminal history score.

          Fuentes-Salgado argues that the district court erred by

adding two points to his criminal history score under § 4A1.1(e)

because he did not commit the instant offense less than two years

after release from imprisonment.    For the same reason, based on

Reyes-Nava, 169 F.3d at 280, and Santana-Castellano, 74 F.3d at

598, the district court did not err in adding the two points to

Fuentes-Salgado’s criminal history score.

          Fuentes-Salgado argues that the district court should

have granted a downward departure under § 5K2.12 due to his unusual

circumstances in fleeing El Salvador during the war to escape

persecution, and under § 5H1.6 due to his family obligations. This

court does not have jurisdiction to review this determination. See

United States v. Brace, 145 F.3d 247, 263 (5th Cir. 1998)(en banc).

          For the foregoing reasons, the conviction is AFFIRMED;

Appellant’s sentence is REVERSED and the case REMANDED to allow the

district court either to resentence or, at its option, sentence

Appellant to twenty-four months imprisonment.

          CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED WITH

INSTRUCTIONS.



                                7
