                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 19 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50423

              Plaintiff - Appellee,              D.C. No. 3:08-cr-02582-JAH-1

  v.
                                                 MEMORANDUM*
PEDRO PEREZ-GODINEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                             Submitted July 15, 2010**
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior 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 Jack J. Camp, Senior United States District Judge for
the Northern District of Georgia, sitting by designation.
                                         -2-
      Appellant Pedro Perez-Godinez, a citizen of Mexico, pled guilty to violating

8 U.S.C. § 1326, which makes it illegal for an alien to re-enter the United States

after being deported or removed. He appeals the trial court’s ruling on his motion

to dismiss the indictment in which he collaterally attacks the Final Administrative

Removal Order ordering his removal.

      In 2004, a jury convicted Appellant of first degree robbery in concert in

violation of California Penal Code § 212.5/213(a)(1)(A). Appellant also received

an enhancement under California Penal Code § 12022(a)(1) for the use of a firearm

in the commission of the robbery. The state court sentenced Appellant to six years

imprisonment on the robbery count with an additional one-year imprisonment for

the firearm enhancement.

      While serving this sentence, a federal agent served Appellant with a Notice

of Intent to Issue a Final Administrative Removal Order. The Notice alleged that

Appellant was subject to deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)

because his California robbery conviction was an aggravated felony. After the

entry of the Removal Order finding Appellant deportable as charged, Appellant

was deported to Mexico.

      Shortly after being deported, Appellant was apprehended while attempting

to illegally re-enter the United States, and a Grand Jury charged Appellant with
                                         -3-
violating 8 U.S.C. § 1326. Appellant then filed a motion to dismiss the indictment

collaterally attacking the previous Removal Order as a violation of his rights as

protected by the Due Process Clause of the Fifth Amendment. He contends that

because his prior conviction is not an aggravated felony, he was improperly

subjected to the expedited removal proceedings of 8 U.S.C. § 1228 and, thus,

denied his right to a hearing before an immigration judge.

      After a hearing, the trial court denied Appellant’s motion. Appellant then

entered a conditional guilty plea, allowing him to appeal the trial court’s order

denying his motion to dismiss. Appellant timely filed this appeal. We review the

trial court’s denial of the motion to dismiss de novo. United States v. Arias-

Ordonez, 597 F.3d 972, 976 (9th Cir. 2010); United States v. Leon-Paz, 340 F.3d

1003, 1004 (9th Cir. 2003).

       A criminal defendant charged pursuant to Section 1326 may collaterally

attack the underlying removal order in a criminal proceeding. United States v.

Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). In order to prevail, the

defendant must demonstrate three elements: "(1) [the defendant] 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 defendant] of the opportunity for judicial review; and (3) the entry of
                                         -4-
the order was fundamentally unfair." 8 U.S.C. § 1326(d); Arias-Ordonez, 597 F.3d

at 976; United States v. Lopez-Velasquez, 568 F.3d 1139, 1142 (9th Cir. 2009). A

removal order is “fundamentally unfair” when the underlying deportation

proceeding violated the defendant’s due process rights, and the defendant suffers

prejudice as a result of the violation. Arias-Ordonez, 597 F.3d at 976.

      The pertinent question on appeal is whether appellant was subject to

expedited removal pursuant to 8 U.S.C. § 1228 as an aggravated felon because of

his prior robbery conviction. The trial court did not err in finding that Appellant

was subject to deportation as an aggravated felon based on his California robbery

conviction, which is categorically a crime of violence. See United States v.

McDougherty, 920 F.2d 569, 573 (9th Cir. 1990) (“[R]obbery under California law

is . . . by definition a crime of violence.”) Because Appellant was convicted of a

crime of violence for which the term of imprisonment is at least one year, he was

subject to expedited removal under Section 1228. Therefore, Appellant cannot

sustain a collateral attack on his removal order because he cannot satisfy his

burden of demonstrating that the order was fundamentally unfair. The trial court

properly denied Appellant’s motion to dismiss the indictment.

      AFFIRMED.
