                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4227


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEVY GUILLERMO RAMIREZ MEJIA, a/k/a Levy Ramirez, a/k/a
Ramirez Levy, a/k/a Levy Guillermo Ramirez-Mejia, a/k/a Levy
Guillermo Mejia Ramirez, a/k/a Levy Guillermo Ramirez,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District Judge.
(1:15-cr-00361-LO-1)


Submitted:   November 15, 2016            Decided:   December 15, 2016


Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Elizabeth Mullin, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant.    Dana J. Boente,
United States Attorney, David Peters, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Levy Guillermo Ramirez Mejia (Ramirez) appeals his conviction

for unlawful reentry after removal following a conviction for a

felony, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012).                          On

appeal, he challenges the district court’s denial of his motion to

dismiss    the   indictment,    arguing      that    he    satisfied       the   three

requirements for a collateral attack on his prior removal order

set forth in 8 U.S.C. § 1326(d) (2012).                   Finding no error, we

affirm.

       In a prosecution for illegal reentry following an order of

removal, a defendant may collaterally attack the removal order

that   constitutes    an   element     of   the     offense     if    he   can   show:

“(1) [he] exhausted any administrative remedies that may have been

available to seek relief against the order; (2) the deportation

proceedings at which the order was issued improperly deprived [him]

of the opportunity for judicial review; and (3) the entry of the

order was fundamentally unfair.”            8 U.S.C. § 1326(d); see United

States    v.   Lopez-Collazo,    824   F.3d    453,       458   (4th   Cir.      2016),

petition for cert. filed, __ U.S.L.W. __ (U.S. Sept. 26, 2016)

(No.   16-6251).      Because    these      conditions      are      listed   in   the

conjunctive, a defendant must show all three in order to prevail.

Lopez-Collazo,     824   F.3d   at   458.      “However,        if   the   defendant

satisfies all three requirements, the illegal reentry charge must

be dismissed as a matter of law.”            United States v. El Shami, 434

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F.3d 659, 663 (4th Cir. 2005).             We conduct a de novo review of the

district court’s denial of a motion to dismiss an indictment under

8 U.S.C. § 1326(d).           Id.

     On appeal, Ramirez first claims that he is not barred by the

exhaustion requirement set forth in 8 U.S.C. § 1326(d)(1) because

exhaustion    in   this       case   would       have   been    futile.    “Statutory

exhaustion requirements such as that set forth in § 1326(d) are

mandatory, and courts are not free to dispense with them.”                    United

States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002) (internal

quotation marks omitted).            “The qualification to this rule is that

futility     excuses      a     litigant         from    a     statutory   exhaustion

requirement ‘where the relevant administrative procedure lacks

authority to provide any relief or to take action whatsoever in

response to a complaint.’”             United States v. Copeland, 376 F.3d

61, 67 (2d Cir. 2004) (quoting Booth v. Churner, 532 U.S. 731, 736

(2001)).

     After conducting a de novo review of Ramirez’s claims, we

agree with the district court that Ramirez cannot demonstrate that

administrative remedies were unavailable to him on account of

futility.    See United States v. Ramirez Mejia, No. 1:15-cr-00361-

LO-1 (E.D. Va. Feb. 23, 2016).                    Accordingly, we conclude that

Ramirez, who did not appeal the removal order to the Board of

Immigration Appeals, failed to exhaust available administrative



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remedies to challenge his removal order and is thus barred from

collaterally attacking the order under 8 U.S.C. § 1326(d). *

      We therefore uphold the district court’s denial of Ramirez’s

motion to dismiss the indictment and affirm the criminal judgment.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                  AFFIRMED




      *Because Ramirez fails to demonstrate that he exhausted any
available administrative remedies to seek relief against the
removal order, we need not consider whether his removal proceedings
improperly deprived him of the opportunity for judicial review or
whether the entry of his removal order was fundamentally unfair.
See § 1326(d)(2), (3).

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