     Case: 19-50501      Document: 00515527155         Page: 1    Date Filed: 08/14/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 19-50501                           August 14, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS IBARRA-LEYVA, also known as Carlos Ibarra, also known as Juan
Carlos Leyva-Gonzales, also known as Carlos Leyva, also known as Carlos
Leyva-Ibarra,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CR-74-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Carlos Ibarra-Leyva appeals the district court’s denial of his motion to
dismiss the indictment charging him with illegal reentry in violation of 8
U.S.C. § 1326. He contends his prior removal order that served as the basis
for his current § 1326 conviction violated his due process rights because it was
based on his prior conviction for Texas manslaughter which, after the Supreme


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-50501

Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), is not a “crime
of violence” under 18 U.S.C. § 16(b), and therefore not an “aggravated felony”
under 8 U.S.C. § 1101(a)(43).
      This court reviews the denial of a motion to dismiss an indictment and
the underlying constitutional claims de novo. United States v. Villanueva-
Diaz, 634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for illegal reentry
under § 1326 may collaterally attack the underlying deportation order. See
United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987).            He must
establish that (1) the prior deportation proceeding was fundamentally unfair;
(2) the hearing effectively eliminated his right “to challenge the hearing by
means of judicial review”; and (3) the procedural deficiencies actually
prejudiced him. United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002);
see § 1326(d).
      Ibarra-Leyva argues that his removal proceedings were fundamentally
unfair because the immigration judge and Board of Immigration Appeals
classified his Texas manslaughter conviction as a “crime of violence” under
§ 16(b), which classification was erroneous under the Supreme Court’s
subsequent holding in Dimaya. The Government contends that Ibarra-Leyva
waived his ability to appeal this issue because his conditional plea agreement
only excepted from his appeal waiver a challenge to the district court’s denial
of his motion to dismiss, and Ibarra-Leyva did not raise this issue in his motion.
We need not decide whether Ibarra-Leyva waived this issue and affirm the
district court’s denial of his motion to dismiss and judgment for the reasons
that follow. See United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995).
      With respect to Ibarra-Leyva’s Dimaya-based arguments, he fails to
show that his removal proceedings were fundamentally unfair inasmuch as the
proceedings did not violate his procedural due process rights. See Lopez-Ortiz,



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                                 No. 19-50501

313 F.3d at 229-30. Because he fails to establish the fundamental-unfairness
prong of the three-part test set forth in Lopez-Ortiz, we do not consider his
arguments concerning the other prongs. See United States v. Mendoza-Mata,
322 F.3d 829, 832 (5th Cir. 2003).
      Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ibarra-Leyva
additionally contends that the prior removal order upon which his indictment
was based was void for lack of subject matter jurisdiction due to the failure of
the notice to appear that commenced his removal proceedings to list the date
and time of his removal hearing. He correctly concedes that this issue is
foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019),
cert. denied, 2020 WL 2515686 (U.S. May 18, 2020), and Pierre-Paul v. Barr,
930 F.3d 684 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27,
2020).
      AFFIRMED.




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