                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 08 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-50253

              Plaintiff - Appellee,              D.C. No. 3:11-cr-04832-AJB-1

  v.
                                                 MEMORANDUM *
ANTONIO LOPEZ-VALLE,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                             Submitted March 6, 2013 **
                                Pasadena, California

Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
      Antonio Lopez-Valle appeals his conviction of attempted entry after deportation

in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

      Lopez argues that the district court erred in denying his motion to dismiss the

indictment, which collaterally attacked the deportation order. “To succeed in such a

challenge . . . an alien must demonstrate that:       ‘(1) the alien 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 the

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

fundamentally unfair.’” United States v. Reyes-Bonilla, 671 F.3d 1036, 1042-43 (9th

Cir. 2012) (quoting 8 U.S.C. § 1326(d)).

      Even assuming arguendo that Lopez could satisfy the first two requirements,

he cannot meet the third. To show fundamental unfairness, Lopez must establish

prejudice. United States v. Bustos-Ochoa, ___ F.3d ___, 2012 WL 6579556, at * 2

(9th Cir. Dec. 18, 2012). Because he has been convicted of an aggravated felony he

cannot do so. Id. at *2-3.

      AFFIRMED.




                                           2
