                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4853


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTONIO ACOSTA-FLORES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:11-cr-00177-JAG-1)


Argued:   May 15, 2012                    Decided:   June 22, 2012


Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant.      Stephen David Schiller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Patrick L. Bryant, Appellate Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Antonio Acosta-Flores appeals his conviction for illegally

re-entering the country after being removed.                        See 8 U.S.C.A.

§ 1326(a) (West 2005).          Finding no error, we affirm.



                                        I.

     Acosta-Flores is a Mexican national who first entered the

United States as a juvenile at an unknown time and place.                             He

has been removed from the United States more than once, and thus

we will summarize the relevant facts with respect to each order

of removal.

              December 18, 1996 In Absentia Removal Order

     Acosta-Flores       was     arrested    in    Michigan         by     immigration

officials     in    October    1995,   charged     with      having       entered   the

United     States     without     inspection,      and       placed       in     removal

proceedings.        The order to show cause was printed in Spanish and

English,      and    Acosta-Flores     signed     the       notice.        The    order

required      Acosta-Flores      to    appear     at    a    hearing       before    an

immigration judge (“IJ”) at a time to be determined, and it

indicated that notice of the date would be mailed to the address

given    by    Acosta-Flores.           Acosta-Flores         was        conditionally

released from custody to his older brother Ernesto, a permanent

legal resident.        The release explicitly ordered Acosta-Flores to

appear for a hearing “when required.”                  J.A. 112.         Ernesto read

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the release to his brother, and both Acosta-Flores and Ernesto

signed it.

     On July 8, 1996, the immigration court sent Acosta-Flores a

certified letter (to the address he provided at his release)

informing          him    that      the   removal      hearing     had        been      set     for

December 18, 1996.               The post office attempted delivery twice,

and left notices, but the certified letter was returned to the

immigration         court     marked      “[u]nclaimed.”           J.A.    123.           Acosta-

Flores did not appear for his hearing, and the IJ issued an

order    of    removal        in     absentia.         The   order    of       removal         went

unenforced           until         the      United        States      Immigration               and

Naturalization Service could find him.

        February 4, 2002 Enforcement of 1996 In Absentia Order

     Immigration            officials       located       Acosta-Flores            five       years

later in Michigan and, on February 4, 2002, served him with a

warrant       of    removal        directing     that     the    outstanding            1996    in

absentia       removal        order       be    executed.            Acosta-Flores              was

transported to Texas and removed to Mexico.

               February 13, 2002 Expedited Order of Removal

     One week later, Acosta-Flores attempted to sneak across the

border in the trunk of a car, but he was discovered by border

agents.        Because        Acosta-Flores         was    attempting         to       enter   the

United States without valid entry documents, he was summarily

removed       on         February     13,      2002,      pursuant       to        8    U.S.C.A.

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§ 1225(b)(1) (West 2005).              Under that statute, border agents are

empowered    to    unilaterally        remove       an     “arriving”        alien   at   the

border if the alien has false documentation or none at all.

                                Subsequent Removals

      On    December    21,     2002,     Acosta-Flores            was       discovered    in

Michigan and served with a notice of intent to reinstate a prior

order, namely the February 4, 2002, order of removal under which

the   1996    in     absentia     removal         order     was    carried       out.      On

January 7, 2003, Acosta-Flores was returned to Mexico.

      On March 10, 2005, Acosta-Flores was caught in New Mexico

and was served with a notice of intent to reinstate a prior

order, namely the 1996 in absentia removal order.                             On March 10,

2005, Acosta-Flores was removed to Mexico.

       Criminal Charges and Motion to Dismiss the Indictment

      In   June    2011,      Acosta-Flores          was       found    in    Virginia    and

indicted for illegal re-entry after being removed in violation

of 8 U.S.C.A. § 1326(a).                Acosta-Flores moved to dismiss the

indictment, claiming that the 1996 in absentia order of removal

was fundamentally unfair and invalid because he never received

notice of the hearing.                 He further argued that none of the

subsequent     orders      of    removal          were     valid       because   they     all

reinstated    or     relied     upon    the       1996    in    absentia      order.      The

district     court     rejected    this       argument,          concluding       that    (1)

Acosta-Flores failed to satisfy the statutory requirements to

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attack the validity of the underlying removal orders; and (2)

the   February   13,   2002,    order    was   not      based   on   the   1996    in

absentia order in any event, and it was a sufficient predicate

to sustain the § 1326 conviction.                  Acosta-Flores subsequently

entered a conditional guilty plea, preserving only his right to

appeal the denial of his motion to dismiss.                 The district court

imposed a time-served sentence.



                                        II.

      On    appeal,    Acosta-Flores        reiterates      the      arguments    he

presented to the district court in support of his motion to

dismiss.    We conclude, however, that the district court properly

denied his motion.

      With one exception that does not apply here, 8 U.S.C.A. §

1326(a) makes it a crime for an alien who has been removed to

re-enter the United States without the consent of the Attorney

General.     Therefore, a valid order of removal is a condition

precedent to the establishment of guilt under § 1326, and a

defendant may collaterally attack the removal order underlying

the offense.     See United States v. Mendoza-Lopez, 481 U.S. 828,

837-38 (1987).

      As we have explained, the district court concluded that,

Acosta-Flores’s argument notwithstanding, the February 13, 2002,

expedited    removal    order    served       as    a   valid     basis    for    the

                                        5
conviction because it was not based on the 1996 in absentia

order.     Acosta-Flores continues to assert that the February 13,

2002, order was in fact based on the 1996 in absentia order, but

he is incorrect.

     The    record   clearly     shows       that   the     February    13,    2002,

Expedited Order of Removal was based on Acosta-Flores’s lack of

documentation at the border rather than on any prior removal

order.     The expedited order includes boxes for the border agent

to check indicating the basis for the expedited removal.                        The

box checked is the one next to Immigration and Nationality Act

section 212(a)(7)(A)(i)(I), which corresponds with 8 U.S.C.A. §

1182(a)(7)(A)(i)(I)     (West    2005)       and    which    provides    that   any

arriving alien not in possession of valid entry documents is

inadmissible.     See also 8 U.S.C.A. § 1225(b)(1) (providing for

summary removal of alien arriving in United States if alien is

inadmissible).       Nowhere does the expedited order even suggest

that the February 13, 2002, removal was based on the in absentia

order.

     Acosta-Flores bases his contrary argument on two points.

First, he claims that “when he was apprehended at the border in

2002,    the   immigration      authorities         determined    that    he    was

inadmissible ‘based upon a final order by an immigration judge

in exclusion, deportation, or removal proceedings.’                     J.A. 127.”

Appellant’s brief at 16.         However, the language on page 127 of

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the joint appendix that Acosta-Flores quotes is actually from

the warrant of removal issued for Acosta-Flores on February 4,

2002,    when    he    was    discovered     in   Michigan,    and    thus    has   no

bearing on the basis of the February 13, 2002 removal order.                        As

a second basis for his argument that the February 13, 2002 order

was based on the in absentia order, Acosta-Flores cites the fact

that when he was removed on February 13, 2002, he “was given a

form incorrectly advising him that he was inadmissible for a

period of twenty years ‘as a consequence of [his] having been

found inadmissible and of [his] having been previously excluded,

deported,       or    removed   from   the     United    States.’      J.A.    130.”

Appellant’s brief at 16 (alterations in original).                     However, as

the district court correctly concluded, the fact that Acosta-

Flores   was     given    a   notice   indicating       that   his   prior   removal

would affect the legal consequences of his February 13, 2002

removal does not indicate that the February 13, 2002 removal was

based on the 1996 order rather than on the fact that he was

caught attempting to surreptitiously enter the country without

the proper papers.            The district court was therefore correct to

deny the motion to dismiss.



                                        III.

     In sum, we affirm Acosta-Flores’s conviction.

                                                                             AFFIRMED

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