           Case: 17-10718   Date Filed: 11/09/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10718
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:16-cr-00281-VMC-JSS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

HILDA GAONA-CALDERON,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (November 9, 2017)

Before ED CARNES, Chief Judge, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Hilda Gaona-Calderon appeals her conviction under 8 U.S.C. § 1326(a) and

(b)(2) for illegally reentering the United States after having been deported

following an aggravated felony conviction.

      Gaona-Calderon is a native and citizen of Mexico who first entered the

United States illegally in the early 1990s. She was deported in 1996 after a state

felony conviction for delivering heroin. She reentered the United States illegally

about two months after her deportation and has lived here since then. In June 2016

she was arrested for illegal reentry and indicted on a single count of illegal reentry

after deportation following an aggravated felony conviction in violation of 8

U.S.C. § 1326(a) and (b)(2). She filed a motion to dismiss the indictment on the

ground that the 1996 deportation order was invalid. See 8 U.S.C. § 1326(d)

(allowing aliens indicted under § 1326 to attack the validity of the underlying

deportation order). The district court denied that motion on the ground that she

failed to exhaust available administrative remedies to challenge the 1996

deportation order, particularly her right to appeal the order. After a bench trial,

Gaona-Calderon was found guilty and sentenced to time served. This is her

appeal.

      An alien charged with illegal reentry after deportation following an

aggravated felony conviction cannot “challenge the validity of the deportation

order . . . unless the alien demonstrates that” (1) she exhausted available


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administrative remedies to seek relief against the deportation order, (2) the

deportation proceedings improperly deprived her of judicial review, and (3) “the

entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). Gaona-

Calderon contends that the district court erred in denying her motion to dismiss the

indictment based on her failure to exhaust her administrative remedies. We review

de novo the district court’s ruling that Gaona-Calderon failed to satisfy § 1326(d)’s

exhaustion requirement. United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir.

2002).

      The record shows that Gaona-Calderon did not exhaust the administrative

remedies available to her to challenge the 1996 deportation order, including her

right to appeal that order. Gaona-Calderon acknowledges as much but argues that

she could not exhaust her right to appeal because the immigration judge never

advised her of that right and, in any event, she could not have appealed the

deportation order because she was deported only two days after entry of that order.

That argument fails because the deportation order shows that she waived her right

to appeal. As a result, the district court did not err in ruling that Gaona-Calderon

failed to exhaust her administrative remedies and denying her motion to dismiss

the indictment. See id. at 1297–98 (concluding that the district court did not err in




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dismissing indictment charging a violation of § 1326(a) and (b)(2) where alien did

not exhaust administrative remedies).1

       AFFIRMED.




       1
         Because Gaona-Calderon failed to appeal her deportation, we need not address her
arguments as to whether she could have exhausted other administrative remedies, such as filing a
motion to reopen the deportation order. And we need not address the other two elements under
§ 1326(d), as she has failed to satisfy the first element. See 8 U.S.C. § 1326(d) (providing that
an alien must prove all three elements to attack the validity of a deportation order).
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