                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 3, 2005

                                                          Charles R. Fulbruge III
                             No. 04-51303                         Clerk



UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

     v.

PRAJEDIS VARGAS-VARELA,

                 Defendant-Appellant


                          --------------------
         Appeal from the United States District Court for the
              Western District of Texas, El Paso Division
                           3:04-CR-774-ALL-PRM
                          --------------------

Before BENAVIDES, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

     Prajedis Vargas-Varela (“Appellant”) contests his federal

conviction and sentence for illegal reentry into the United

States after removal.    We find no merit in his substantive

challenge to the conviction.    However, Appellant’s claim that the

district court sentenced him in violation of United States v.

Booker, 125 S. Ct. 738 (2005), is valid.    Thus, we vacate the

sentence and remand.


     *
          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that this opinion should not be published and is not precedent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.

                                  1
I. Background

     Appellant was born in Mexico and became a lawful permanent

resident of the U.S. in 1990.   In 1998, he was convicted in Texas

of felony DWI (driving while intoxicated).       Due to this

conviction, an immigration judge ordered Appellant removed from

the U.S. as an aggravated felon.       The Board of Immigration

Appeals subsequently dismissed an appeal of this decision and

Appellant was removed from the country.       In 2003, Appellant was

found in the U.S., the removal order was reinstated, and he was

again removed.

     In 2004, Appellant was arrested in Texas and charged with

illegal reentry after removal pursuant to 8 U.S.C. § 1326.         He

moved for dismissal, arguing, inter alia, that his prior removal

had been fundamentally unfair because it was based on an

erroneous interpretation of law.       The district court denied

Appellant’s motion.   Appellant waived his right to a jury trial

and the district court subsequently found him guilty on

stipulated facts.   The probation officer recommended in the PSR

(presentence report) that Appellant’s criminal history score be

raised from eight points to ten, pursuant to U.S.S.G. § 4A1.1(e),

because Appellant committed the reentry offense within two years

of being released from custody.    Appellant objected, arguing that

this was not based on facts admitted by him or alleged in the

indictment, and thus violated the rule of Blakely v. Washington,


                                   2
542 U.S. 296 (2004).

     The district court overruled the objection.   It determined

that Appellant had an offense level of ten, a criminal history of

V, and a guideline sentence range of 21 to 27 months.   The court

sentenced him to 24 months in prison.

II. Discussion

     Appellant’s initial argument is that the district court

erred by not granting his motion to dismiss due to the invalidity

of his prior removal.   Assuming arguendo that Appellant has

correctly identified substantive legal error in the immigration

judge’s order removing him from the U.S. because of the DWI

conviction, it is clear that Appellant has failed to meet the

rather stringent standard we apply for granting relief in such a

case.

     In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the

Supreme Court held that a defendant prosecuted under § 1326

could, under very limited circumstances, collaterally attack the

underlying deportation or removal order.   We subsequently

delineated this narrow exception to the general proscription of

collateral challenges as follows: “[A]n alien challenging a prior

removal [must] establish that (1) the removal hearing was

fundamentally unfair; (2) the hearing effectively eliminated the

right of the alien to challenge the hearing by means of judicial

review of the order; and (3) the procedural deficiencies caused


                                 3
the alien actual prejudice.”     United States v. Lopez-Ortiz, 313

F.3d 225, 229 (5th Cir. 2002); accord United States v. Hernandez-

Avalos, 251 F.3d 505, 507 (5th Cir. 2001).    This formulation was

subsequently codified in 8 U.S.C. § 1326(d).    The United States

argues that Appellant cannot establish that the underlying

proceeding was “fundamentally unfair.”    We agree.

     We review de novo Appellant’s claim regarding the underlying

removal order.     See United States v. Estrada-Trochez, 66 F.3d

733, 735 (5th Cir. 1995).    A proceeding is fundamentally unfair

when it violates the defendant’s procedural due process rights.

See Lopez-Ortiz, 313 F.3d at 230; see also United States v.

Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003).      “The Supreme

Court has stated that due process requires that an alien who

faces deportation be provided (1) notice of the charges against

him, (2) a hearing before an executive or administrative

tribunal, and (3) a fair opportunity to be heard.”       Lopez-Ortiz,

313 F.3d at 230.    Appellant does not claim that his removal

proceeding lacked such procedural processes.    Thus, we affirm

Appellant’s conviction.

     Appellant argues that he was sentenced in violation of

United States v. Booker, 125 S. Ct. 738 (2005).       The United

States agrees, concedes that Appellant preserved the error, and

recognizes that remand and resentencing in accordance with Booker

and United States v. Mares, 402 F.3d 511 (5th Cir. 2005), is


                                   4
appropriate.    In light of this concession, we remand for

resentencing.

III. Conclusion

     Accordingly, we AFFIRM Appellant’s conviction, VACATE his

sentence and REMAND to the district court for resentencing.




                                  5
