                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                                 MAR 15 2010

                                                                          MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 09-10196               U.S. COURT OF APPEALS



             Plaintiff - Appellee,               D.C. No. 4:08-CR-00040-FRZ-
                                                 CRP-1
  v.

VICTOR MANUEL CANEDO-REYNA,                      MEMORANDUM *

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Frank R. Zapata, District Judge, Presiding

                      Argued and Submitted March 10, 2010
                           San Francisco, California

Before: FERNANDEZ, GRABER, and McKEOWN, Circuit Judges.

       Defendant Victor Canedo-Reyna appeals his conviction for illegal reentry in

violation of 8 U.S.C. § 1326. For the following reasons, we affirm.

       1. Reviewing de novo, United States v. Proa-Tovar, 975 F.2d 592, 594 (9th

Cir. 1992) (en banc), we hold that the district court properly denied Defendant’s

collateral attack on the 1985 deportation order. The court correctly held that


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant had not exhausted his administrative remedies. See 8 U.S.C.

§ 1326(d)(1) (requiring exhaustion of administrative remedies). As the

government concedes, Defendant could still file a motion to reopen, but he has not

done so.

      2. Reviewing de novo, United States v. Mosley, 465 F.3d 412, 414-15 (9th

Cir. 2006), we hold that sufficient evidence supported the conviction. A

reasonable juror could have concluded that Defendant was free from official

restraint in the five-day period between his entry into the country and his

interview, many miles from the border, with the testifying government agent. See

United States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005) (reaching the

same conclusion on similar facts).

      AFFIRMED.




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