                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4610


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JUAN ANTONIO MORENO-TAPIA, a/k/a Julian Castellanos,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00241-CCE-1)


Argued:   October 28, 2016                 Decided:   January 26, 2017


Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge Traxler and Judge Diaz joined.


ARGUED: John Arthur Duberstein, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anand P.
Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States   Attorney,  OFFICE   OF  THE   UNITED STATES  ATTORNEY,
Greensboro, North Carolina, for Appellee.
PAMELA HARRIS, Circuit Judge:

     In 2007, appellant Juan Antonio Moreno-Tapia, a native of

Mexico, pleaded guilty in North Carolina court to three counts

of indecent liberties with a child.               According to Moreno-Tapia,

neither his counsel nor the court informed him of the potential

immigration     consequences      of   his    guilty         plea.          But     those

consequences turned out to be significant, and in 2009, Moreno-

Tapia was removed from the United States on the basis of his

state convictions.

     After      Moreno-Tapia       reentered           the        country         without

permission, he was charged in federal court in 2014 with illegal

reentry by a removed alien, see 8 U.S.C. § 1326(a), (b)(2), as

well as failure to register as a sex offender under SORNA, the

Sex Offender Registration and Notification Act, see 18 U.S.C.

§ 2250.       Moreno-Tapia   argued,       however,      that       his     underlying

convictions     were   unconstitutional       in       light       of    the      Supreme

Court’s intervening decision in Padilla v. Kentucky, 559 U.S.

356, 374 (2010), holding that the Sixth Amendment requires a

defense    attorney     to   advise    a     non-citizen           client      of    the

immigration risks of a guilty plea.                And, indeed, in 2015, a

North Carolina court vacated Moreno-Tapia’s convictions, relying

on Padilla.

     The   primary     question   before     us    now       is   what    effect     the

alleged    constitutional      deficiency         in     Moreno-Tapia’s             state

                                       2
convictions          has   on    his    subsequent            prosecution       for    illegal

reentry.       We conclude that the alleged infirmity has no effect.

Because Padilla does not apply retroactively to defendants like

Moreno-Tapia, convicted before the case was decided, see Chaidez

v. United States, 133 S. Ct. 1103, 1105 (2013), Moreno-Tapia’s

convictions remain valid today as a matter of federal law, and

his   attempt         to   collaterally            attack        his    2009     removal   is

unavailing on that ground alone.

      Accordingly,         we    hold    that       the       district     court      properly

denied Moreno-Tapia’s motion to vacate the 2009 removal order

and   to   withdraw        his    guilty   plea          to    the     charge    of   illegal

reentry.        And for similar reasons, we find no error in the

district court’s reliance on the vacated state convictions in

determining Moreno-Tapia’s sentencing range under the Sentencing

Guidelines.          We therefore affirm the judgment of the district

court in all respects.



                                           I.

                                           A.

      We begin with a brief overview of the statutory background

relevant       to    the   illegal     reentry          charge    against      Moreno-Tapia.

Under 8 U.S.C. § 1326(a) and b(2), an alien who has been removed

from the United States after being convicted of an aggravated

felony     –    as    Moreno-Tapia       was       in    2009,     based    on     his   state

                                               3
convictions – commits a felony if he subsequently reenters the

United States without permission.                           To win a conviction under

§ 1326, the government must prove, as an element of the offense,

the   defendant’s       prior     removal         or    deportation.             See   United

States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). 1

      Typically, the government may rely on the removal order

itself, issued by the Department of Homeland Security (“DHS”),

to meet this burden.          But in United States v. Mendoza-Lopez, 481

U.S. 828 (1987), the Supreme Court held that the fact of a

removal   order       may   not   be    treated         as     conclusive    proof     of    an

element of a criminal offense where the immigration proceeding

“was not conducted in conformity with due process.”                              Id. at 834,

838-39.      In      that   case,      the   Court          concluded,     the    underlying

immigration       proceeding        violated           due      process,     because        the

immigration judge permitted improper waivers of the right to

appeal    and     failed     to     advise        of        eligibility    to     apply     for

suspension      of    deportation.           Id.       at    840.   And     because       those


      1The terms “deportation” and “removal” are interchangeable
for purposes of § 1326.   United States v. Gomez, 757 F.3d 885,
891 n.1 (9th Cir. 2014). While § 1326(a) refers, inter alia, to
an alien who has been “deported” or “excluded,” the subsequently
enacted Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 combined those once distinct proceedings into a
single category of “removal proceedings.” Jama v. Immigration &
Customs Enforcement, 543 U.S. 335, 349–50 (2005); Gomez, 757
F.3d at 891 n.1. Cases post-dating this amendment generally use
the term “removal proceedings,” although § 1326 continues to
refer to “deportation proceedings.” See 8 U.S.C. § 1326(d)(2).


                                              4
procedural defects foreclosed judicial review of the resulting

deportation order, the Court held, the defendants were entitled

to     collaterally      attack       that     order   in   their     subsequent

prosecution for illegal reentry.              Id. at 837-39.

       Congress responded by codifying the principle of Mendoza-

Lopez in 8 U.S.C. § 1326(d).                 See United States v. Sosa, 387

F.3d 131, 136 (2d Cir. 2004).                Under that statute, in order to

bring a successful collateral attack against a removal order,

the defendant in an illegal reentry prosecution must meet three

requirements, demonstrating that:

       (1) [he or she] 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.

8 U.S.C. § 1326(d); see United States v. Lopez-Collazo, 824 F.3d

453,    458   (4th    Cir.   2016).      Like    Mendoza-Lopez,     these   three

factors – exhaustion of administrative remedies, the denial of

judicial review, and fundamental unfairness – are concerned with

procedural     irregularities     in    immigration     proceedings    that   may

insulate the resulting orders from judicial review, making it

fundamentally unfair to rely on those orders in later criminal

prosecutions.        Sosa, 387 F.3d at 136.



                                         5
                                            B.

      Moreno-Tapia immigrated to the United States from Mexico

with his family as a child.             His parents became legal permanent

residents, as did his five siblings.                  Moreno-Tapia applied for

legal permanent residency, but the process never advanced due to

his eventual removal from the United States.

      There are two underlying proceedings relevant to this case:

a state prosecution for indecent liberties with a child, and a

subsequent       immigration      proceeding       that    led   to     Moreno-Tapia’s

deportation.       First, in 2006, Moreno-Tapia was charged in North

Carolina court with three counts of felony indecent liberties

with a child, see N.C. Gen. Stat. Ann. § 14-202.1, arising from

Moreno-Tapia’s consensual relationship with a fifteen-year old

girl when he was twenty-one.                 Moreno-Tapia pleaded guilty and

was sentenced to 15 to 18 months’ imprisonment.                           At the plea

hearing,    the    court     instructed      Moreno-Tapia        that    he   would    be

required to register as a sex offender after his release from

prison.     But Moreno-Tapia alleges that he was not informed of

the immigration consequences of his guilty plea by his attorney

or    by   the    court.         Although    his    plea    document       noted     that

deportation      was    a   possible   consequence,         Moreno-Tapia       did    not

sign the plea document and claims he never saw a copy of it.

      Second, while Moreno-Tapia was serving his state sentence,

DHS    initiated       removal    proceedings,       on    the    ground      that    his

                                            6
indecent liberties convictions qualified as aggravated felonies

subjecting       him      to       deportation.             See         8       U.S.C.

§ 1227(a)(2)(A)(iii).          Because Moreno-Tapia was never lawfully

admitted to the United States for permanent residence, he was

subject   to    an     expedited    removal    process.           See       8   U.S.C.

§ 1228(b);     Etienne    v.   Lynch,   813   F.3d   135,   138-40          (4th   Cir.

2015) (describing expedited removal process).                Instead of being

afforded a hearing before an immigration judge, Moreno-Tapia was

served with a Notice of Intent to Issue a Final Administrative

Removal Order (“NOI”), indicating that DHS would enter a final

removal order and that Moreno-Tapia had ten days to rebut the

charge in writing.        See 8 C.F.R. § 238.1(b)(2)(i); Etienne, 813

F.3d at 138-39.          Moreno-Tapia did not contest the charge and

instead requested that he be removed to Mexico.                     In March of

2009, soon after service of a final removal order and Moreno-

Tapia’s release from state prison, DHS deported Moreno-Tapia.

                                        C.

     At some point prior to 2011, Moreno-Tapia reentered the

United States without permission and returned to North Carolina.

He did not register as a sex offender under SORNA, despite his

convictions for a qualifying sex offense.               A subsequent arrest

revealed him to the authorities and led to the current federal

proceeding.



                                        7
     In    June     2014,      Moreno-Tapia      was    indicted         in    the    Middle

District of North Carolina on two charges: illegal reentry by a

removed alien, under 8 U.S.C. § 1326(a) and (b)(2); and failure

to register as a sex offender, under 18 U.S.C. § 2250.                                    The

parties    entered      into     a    written    plea    agreement,           under     which

Moreno-Tapia pleaded guilty to the illegal reentry charge, and

the government agreed to dismissal of the charge for failure to

register.

     After        his   guilty       plea,    Moreno-Tapia          in   February        2015

returned     to     North   Carolina         court     and    filed      a     Motion     for

Appropriate Relief (“MAR”) seeking to vacate his state indecent

liberties    convictions.            Relying     on    the    Supreme         Court’s    2010

decision in Padilla v. Kentucky, 559 U.S. 356 (2010) – issued

three years after his convictions – Moreno-Tapia argued that his

convictions should be set aside because his lawyer’s failure to

inform him of the immigration consequences of his guilty plea

meant that his plea was not knowing and voluntary.                               The North

Carolina court agreed, and vacated Moreno-Tapia’s convictions on

the ground that they “were the result of a plea that was not

sufficiently knowing and voluntary under Padilla[.]”                             J.A. 237.

Neither Moreno-Tapia nor the North Carolina court addressed the

Supreme    Court’s      2013    decision      holding        that   Padilla       does    not

apply     retroactively        to     defendants       like     Moreno-Tapia,           whose



                                             8
convictions became final before that decision was issued.                                    See

Chaidez, 133 S. Ct. at 1113.

       With the state MAR ruling vacating his convictions in hand,

Moreno-Tapia returned to federal district court.                                   According to

Moreno-Tapia, his removal order – a predicate for the charge of

illegal     reentry       –   was     subject       to    collateral         attack      under    8

U.S.C.          § 1326(d)        on     the     ground          that        it      rested       on

unconstitutional           and    since-vacated           convictions.             Moreno-Tapia

thus moved to vacate the 2009 removal order and, if successful,

to withdraw his guilty plea to the charge of illegal reentry.

That would leave in place the charge for failure to register as

a   sex    offender       –   but     that    charge,         too,    Moreno-Tapia       argued,

could not go forward in light of the vacatur of his underlying

convictions.            Accordingly, Moreno-Tapia also moved the district

court to dismiss both counts of the indictment against him.

       At a hearing in July 2015, the district court denied all of

Moreno-Tapia’s motions.                As to the illegal reentry charge, the

district court explained, the vacatur of Moreno-Tapia’s state

convictions        was    not     dispositive;           to    make    a    case    of   illegal

reentry         under    § 1326,       the    government             need    not     prove   the

underlying convictions from 2007, but only that Moreno-Tapia in

fact      had    been    removed      in     2009.        See    J.A.       171    (“[T]he   new

prosecution for illegal reentry is not based on the old vacated

conviction, it is based on the deportation; and the deportation

                                                9
was based on a facially valid conviction at the time of the

deportation[.]”).

     Nor, the district court held, could Moreno-Tapia mount a

collateral     attack    on   the     2009   removal    order    based          on    the

purported    constitutional      deficiency      of    his   2007        convictions.

The district court reviewed the three-part standard of § 1326 –

exhaustion   of    administrative       remedies,     preclusion         of    judicial

review, and fundamental unfairness – and held that Moreno-Tapia,

who had consented to his deportation and never sought “any sort

of review of any part of the deportation proceedings,” could not

meet the first two requirements.             J.A. 167.       The court rejected

Moreno-Tapia’s argument that his failure to seek administrative

or judicial review should be excused because he was then unaware

of   a   potential       constitutional         infirmity       in        his        state

convictions.       Though     there    are   cases    excusing       a    failure      to

exhaust when it is caused by a procedural irregularity in a

deportation proceeding itself, the court explained, those cases

“concern rights one has with the immigration proceeding,” not

with respect to an underlying conviction.               J.A. 170.             And here,

Moreno-Tapia      had   identified     no    procedural      problems         with    his

immigration proceeding at all:

     Mr. Moreno-Tapia does not contend he was affirmatively
     misadvised by anyone involved in the deportation
     proceedings concerning his right to contest the
     deportation or to appeal the decision . . . . He has
     not identified anything that immigration authorities

                                        10
        should have done during the course of the deportation
        proceedings that they did not do, and the Court thus
        finds that he’s not met the first two requirements of
        the statute as those requirements would ordinarily be
        interpreted.

J.A. 167.

       Relying on Moreno-Tapia’s failure to satisfy the first two

requirements of § 1326, the district court had no need to make a

final     determination       as     to        the     third       factor,     fundamental

unfairness.       But the court did note that Moreno-Tapia was not

asserting actual innocence of the indecent liberties charges,

and that Padilla, on which the state MAR court relied, does not

apply    retroactively.            Ultimately,          the       court   concluded         that

§ 1326 and Mendoza-Lopez could provide no relief because Moreno-

Tapia’s complaint was not with his immigration proceedings but

rather    with    his   underlying         state           convictions,      independently

subject to judicial review through the state-court MAR process.

The court therefore denied Moreno-Tapia’s motions to vacate the

2009    removal    order     and    to    withdraw          his    guilty    plea      to    the

illegal reentry charge.

       The district court recognized that Moreno-Tapia’s motion to

dismiss    the    indictment        against          him    was     “dependent”     on       the

success of his motions to vacate his removal order and withdraw

his plea.        J.A. 156.     If the removal order and plea agreement

remained    in    effect,     that       is,    then        Moreno-Tapia       would     stand

convicted    of    illegal    reentry,          and    the     charge     of    failure       to

                                               11
register as a sex offender would be dismissed pursuant to the

plea agreement.        Id.        (“If I deny the motion to vacate the

deportation   order    .     .    .     the    motion     to   withdraw       the   guilty

plea . . . doesn’t need to be heard . . . and it sort of does

away with the motion to dismiss the indictment as well[.]”).

Nevertheless, the court went on to deny the motion to dismiss

both counts of the indictment “[t]o the extent [it] is still

before the [c]ourt.”         J.A. 176.

      In September 2015, the district court held a sentencing

hearing on    the    illegal      reentry          charge.     Consistent       with   the

Presentence Report (“PSR”), and over Moreno-Tapia’s objection,

the   district      court        used     the       vacated      indecent      liberties

convictions   as     the    basis       for     a     twelve-level     enhancement       to

Moreno-Tapia’s      offense      level        under    § 2L1.2    of    the   Sentencing

Guidelines,   on     the    ground       that       Moreno-Tapia       “previously     was

deported” after a conviction for a “crime of violence.”                                U.S.

Sentencing    Guidelines         Manual        § 2L1.2(b)(1)       (U.S.      Sentencing

Comm’n 2014) (amended 2016).                  After a minor downward departure,

the district court was left with a Guidelines range of 24 to 30

months, and sentenced Moreno-Tapia to 27 months’ imprisonment.

      This timely appeal followed.




                                              12
                                                  II.

                                                  A.

       We begin with the core issue in this case: Moreno-Tapia’s

motion to vacate his removal order, without which, he argues, he

may not be convicted of illegal reentry.                           This court reviews de

novo   a    collateral          attack       on   a     removal    order     under   8     U.S.C.

§ 1326(d).         El Shami, 434 F.3d at 663.

       As    described          above,       § 1326(d),          like   the    Mendoza-Lopez

decision it codifies, is concerned with failures of due process

in an immigration proceeding that would make it fundamentally

unfair to rely on a removal order coming out of that proceeding.

In   particular,       where       a     procedural         defect      in    an   immigration

proceeding insulates the resulting order from judicial review,

due process requires that the order be subject to collateral

attack if it is relied on in a subsequent criminal prosecution.

See Mendoza-Lopez, 481 U.S. at 840 (holding that immigration

proceeding         violated       due        process       because      immigration        judge

permitted waivers of right to appeal that were not knowing);

§ 1326(d)(1), (2) (requiring, as condition of collateral attack,

that defendant have exhausted administrative remedies and been

deprived of judicial review).                         That principle is broad enough,

courts      have    held,       that     a    failure       to    exhaust     administrative

remedies or seek judicial review as required by § 1326(d) will

be   excused,        and    a    collateral            attack     permitted,       where    that

                                                  13
failure      is   itself     the    product        of    a     procedural    flaw       in   the

immigration       proceeding.            See,      e.g.,      Sosa,   387    F.3d       at   137

(excusing administrative exhaustion requirement of § 1326(d)(1)

where immigration judge fails to inform of right to apply for

administrative relief); United States v. Muro-Inclan, 249 F.3d

1180, 1183 (9th Cir. 2001) (finding waiver of right to appeal

removal      order        does    not     preclude           collateral     attack       under

§ 1326(d) where immigration judge failed to advise of right to

seek relief from deportation); see also Lopez-Collazo, 824 F.3d

at     459    (accepting           government           concession        that        § 1326(d)

exhaustion        requirements          are   excused         by   failure       to     provide

translator where language barrier prevents informed decision to

waive appeal rights).

       But this case, as the district court recognized, is quite

different.        The thrust of Moreno-Tapia’s argument is not that

his immigration proceedings were procedurally defective; it is

that   his    underlying         state    criminal           proceedings    were       rendered

constitutionally infirm by his counsel’s failure to inform him

of the potential immigration consequences of his guilty plea.

At bottom, Moreno-Tapia asks us to find that his immigration

proceedings were fundamentally unfair and violated due process

not    because       of    any     intrinsic        procedural        irregularity,          but

because       they        were     predicated           on     unconstitutional          state

convictions.

                                              14
     As        the     district        court    observed,    there     is    an     obvious

mismatch between the kind of claim Moreno-Tapia seeks to advance

and the concerns of Mendoza-Lopez and requirements of § 1326(d).

Perhaps most important, whereas Mendoza-Lopez and § 1326(d)(2)

focus on the preclusion of judicial review of an immigration

order as justification for subsequent collateral attack, here

Moreno-Tapia had access to a well-established route to judicial

review of his underlying state conviction, by way of the state

MAR statute.           See J.A. 173 (“Mendoza-Lopez doesn’t help . . .

because in that case there were no avenues for judicial review

of the decision at issue.                      Here, the state court MAR statute

provides a well-established mechanism for judicial review of an

allegedly            unconstitutional           [conviction.]”).             And        while

immigration           officials         must     satisfy     certain        due     process

obligations with respect to their own proceedings, see, e.g.,

Mendoza-Lopez, 481 U.S. at 840; Lopez-Collazo, 824 F.3d at 461,

there is no authority imposing on them the duty to advise aliens

of potential legal infirmities in prior criminal proceedings.

See J.A. 170 (due process does not require “that immigration

officials evaluate and advise someone facing deportation based

on a deportable criminal conviction of all the possible reasons

the conviction might be invalid”).

     We need not decide today, however, whether these hurdles

might     be     overcome,        or     whether     due    process    might       in   some

                                                15
circumstances     demand       that    an       immigration      order    based       on   an

unconstitutional        conviction         be   subject     to   collateral         attack.

That is because in this case, Moreno-Tapia’s argument is flawed

in   its    premise     –    that    his    state     convictions        in    fact    were

constitutionally infirm.              Moreno-Tapia pleaded guilty in 2007,

three    years   before      the     Supreme      Court’s    decision         in   Padilla.

Because the Supreme Court subsequently decided that Padilla does

not apply retroactively, see Chaidez, 133 S. Ct. at 1113, any

failure by Moreno-Tapia’s lawyer to warn him of the possible

immigration consequences of his guilty plea would not render

Moreno-Tapia’s convictions constitutionally unsound.                               In other

words, Moreno-Tapia’s underlying convictions were not obtained

unconstitutionally, and as a result, he cannot prevail even if

we   were   to   assume      that     an    immigration       order      resting      on   an

unconstitutional conviction would be open to collateral attack

on that ground alone.

       That the state MAR court vacated Moreno-Tapia’s convictions

under Padilla         does   not    change      our   analysis.         The    government

suggests that the MAR court’s holding actually may rest on a

state-law rule requiring defendants such as Moreno-Tapia to be

made    aware    of    deportation         consequences       arising      from      guilty

pleas.      But whatever the explanation, the state court applied

Padilla     retroactively       to    convictions       that     were     final      before

Padilla was decided.           And despite Moreno-Tapia’s efforts to re-

                                            16
characterize the state court decision as turning on something

other    than    Padilla,       it   is    clear       that   the     MAR     court’s     brief

order,    citing        Padilla      and    no     other      case,      is      in   fact     an

application of Padilla, see J.A. 237 (defendant’s plea was “not

sufficiently knowing and voluntary under Padilla v. Kentucky”) –

which is not surprising, given that Moreno-Tapia’s argument to

that court also rested entirely on Padilla.                              It is true, as

Moreno-Tapia argues, that the state court order is not before us

for review.           But Moreno-Tapia has put before us, and squarely

so, the question of whether his underlying state convictions

were the result of a constitutional violation.                           And whatever the

merits of the MAR court decision under state law, under Chaidez,

there was no federal constitutional violation on which Moreno-

Tapia can base a collateral attack here.

       Under § 1326(d), this crucial shortcoming in Moreno-Tapia’s

case     shows    up     most     plainly         in    application         of    the     third

requirement       for    a   collateral          challenge      –    that     entry     of    the

removal       order     in   question       be     “fundamentally             unfair.”        To

demonstrate        “fundamental            unfairness”          under         § 1326(d),        a

defendant       must    show    both      that    his    “due       process      rights      were

violated by defects in his underlying deportation proceeding”

and    also    that     he   “suffered      prejudice”        as     a   result.         Lopez-

Collazo, 824 F.3d at 460 (quoting El Shami, 434 F.3d at 664).

We     have    explained        already      the       gap    between         Moreno-Tapia’s

                                             17
challenge to his state criminal proceedings and the requirement

that       he    identify       a    procedural      “defect[]     in    his   underlying

deportation            proceeding,”      id.     (emphasis       added).       But      even

assuming         Moreno-Tapia        could     satisfy    the    first     prong   of   the

“fundamental unfairness” standard, the failure of his Padilla

claim means that he cannot satisfy the prejudice prong. 2

       In Lopez-Collazo, we held that to meet § 1326(d)’s “actual

prejudice” requirement, a defendant must show that but for the

procedural errors at issue, there was a “reasonable probability

that he would not have been deported.”                        Id. at 462 (quoting El

Shami, 434 F.3d at 665).                 And, critically, in evaluating whether

a defendant likely would have been deported notwithstanding any

procedural defect, we consider the law as it stood at the time

of the immigration proceedings.                   Id. at 462-63, 466 (because law

at   time        of    removal      classified      offense   as   aggravated      felony,

entry       of        removal    order    does      not   prejudice      defendant       and

subsequent change in classification of offense does not permit

       2For the first time on appeal, Moreno-Tapia does raise
certain   alleged  procedural  deficiencies  in   his  expedited
immigration proceedings, arguing that he was removed after eight
days rather than the fourteen days specified in 8 U.S.C.
§ 1228(b)(3), and that the notice DHS provided him did not
include a citation for the statutory definition of an aggravated
felony. Ordinarily, of course, we do not reach issues that were
not presented first to the district court. Robinson v. Equifax
Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009).     And in
any event, for the reasons discussed below, Moreno-Tapia cannot
demonstrate that he was prejudiced by any purported defect he
now identifies.


                                               18
collateral attack); see also United States v. Gomez, 757 F.3d

885, 898-99 (9th Cir. 2014) (courts “look to the law at the time

of   the   deportation       proceedings”       in    assessing     prejudice     under

§ 1326(d)).

      Here, Moreno-Tapia was removed from the United States in

2009, a year before Padilla was decided.                   The law at the time of

his removal, in other words, gave Moreno-Tapia no right to be

informed      by     his     counsel      of        the    potential      immigration

consequences of his guilty plea.                   Under the reasoning of Lopez-

Collazo,     it    likely    follows     that      any    failure    of   due   process

connected     to    Moreno-Tapia’s       immigration        proceedings     could   not

have caused him “actual prejudice,” as he would have remained

subject to removal based on his then-valid prior convictions.

See 824 F.3d at 466.               But this case is more straightforward

still, because as a result of Chaidez’s holding that Padilla

does not apply retroactively, Moreno-Tapia’s state convictions

not only were constitutional when Moreno-Tapia was removed, but

remain constitutional today. 3                There is no process, in other

words,     that    could    have   led   to    a    finding   that    Moreno-Tapia’s

underlying state convictions were anything but constitutionally

      3We therefore need not consider whether the principle
articulated in Lopez-Collazo – that courts refer to the law as
it stood at the time of removal in assessing prejudice under
§ 1326(d) – would extend to new substantive rules applied
retroactively by the Supreme Court. See Welch v. United States,
136 S. Ct. 1257, 1264-65 (2016).


                                          19
valid, and as a result, Moreno-Tapia’s “case for ‘fundamental

unfairness’ collapses[.]”               See id. at 465.

       Accordingly,        we    need     not    consider      whether   Moreno-Tapia

could       satisfy   the       first     two    requirements       of   § 1326(d)      –

administrative exhaustion and deprivation of judicial review –

or whether his failure to do so could be excused on some ground.

Because      the   state    convictions         on   which    his   removal    order   is

based were at the time of removal and are today constitutionally

valid,       Moreno-Tapia       cannot     show      the     requisite   “fundamental

unfairness” under § 1326(d), and his collateral challenge fails

for that reason alone.             And by the same token, due process is

not offended when, as the district court put it, “someone who

has been lawfully deported based on a [constitutionally valid]

felony conviction and who has been advised that it would be

illegal to come back into the country is prosecuted for exactly

that       action.”   J.A.       176.      We    therefore     affirm    the   district

court’s denial of Moreno-Tapia’s motions to vacate the order of

removal and withdraw his guilty plea to illegal reentry. 4


       4
       We also find that to the extent Moreno-Tapia’s motion to
dismiss the indictment was still before the district court, see
supra at 11-12, it was properly denied. As discussed above, the
government was entitled to charge Moreno-Tapia with illegal
reentry   notwithstanding  the  vacatur   of  his   state  court
convictions.    And once the district court held that Moreno-
Tapia’s plea agreement remained enforceable, there no longer was
any ground for a challenge to the charge of failure to register
as a sex offender under SORNA: Pursuant to the plea agreement,
(Continued)
                                            20
                                        B.

     Moreno-Tapia      also      challenges    his      sentence     for     illegal

reentry, arguing that the district court improperly took account

of his vacated state convictions in calculating his Sentencing

Guidelines    range.        We    review     the     district      court’s    legal

interpretation of a Guidelines provision de novo, see United

States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006), and finding

no error, we affirm.

     Violations     of    § 1326’s       illegal-reentry        provision       are

governed by § 2L1.2 of the Sentencing Guidelines, which provides

for enhancements based on specific offense characteristics.                      As

relevant here, § 2L1.2 imposes a 12-level enhancement to the

offense level of a defendant who “previously was deported . . .

after[]   a   conviction”     for   a   “crime     of   violence.”         U.S.S.G.

§ 2L1.2(b)(1) (2014). 5          Moreno-Tapia does not dispute that the

offense of which he was convicted – indecent liberties with a




that count of the indictment was dismissed at sentencing on the
government’s motion. We thus have no occasion to consider the
merits of Moreno-Tapia’s conditional challenge to his indictment
for failure to register.
     5  The offense-level increase rises to 16 if a prior
conviction for a crime of violence receives criminal history
points under a different Guidelines provision.     See U.S.S.G.
§ 2L1.2(b)(1)(A).   The parties agree that Moreno-Tapia’s now-
vacated state convictions do not receive criminal history
points, and the district court did not apply the alternative 16-
level enhancement.


                                        21
child    –   qualifies       as   a    “crime      of     violence”     under       § 2L1.2.

Instead, he argues that because his convictions were vacated

after his removal and illegal reentry, they should not have been

taken into account at sentencing under § 2L1.2.                        We disagree.

     Although       we   have         addressed      the     question        only    in    an

unpublished decision, see United States v. Moran-Rosario, 466 F.

App’x 257 (4th Cir. 2012), other circuits have reached the same

conclusion,       holding     that      the    relevant        time    for     determining

whether      a   prior   conviction        qualifies        for    enhancement         under

§ 2L1.2 is the date of the defendant’s deportation and not the

date of a subsequent illegal reentry charge or sentencing.                                See

id. at 258 (citing cases).                    In other words, if a qualifying

conviction was on the books when the defendant was deported,

then it serves to enhance a sentence for illegal reentry under

§ 2L1.2 even if it is subsequently vacated, see, e.g., United

States    v.     Orduno-Mireles,        405    F.3d     960,    961    n.1     (11th      Cir.

2005); United States v. Garcia-Lopez, 375 F.3d 586, 588 (7th

Cir. 2004); United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir.

2000),    or     otherwise    set      aside,      see,    e.g.,      United    States     v.

Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (conviction set aside

when probation term completed).

     This follows, the courts have reasoned, from two features

of § 2L1.2.       First, the provision is written in the past tense,

focusing on the time of deportation:                    The enhancement applies if

                                              22
a      defendant       who        illegally         reenters        “previously         was

deported     . . . after[] a conviction,” U.S.S.G. § 2L1.2(b)(1),

demonstrating that “the present status of the [] conviction is

irrelevant.     It is impossible to alter the historical fact that

the defendant was convicted, and then deported.”                          Luna-Diaz, 222

F.3d at 4.      And second, when sentencing provisions are intended

to exclude subsequently vacated convictions from their scope,

they    generally      say        so    expressly     –    like     other       Guidelines

provisions,        see,      e.g.,       U.S.S.G.     § 4A1.2,           cmt.    n.6    (in

calculating        criminal        history,      “[s]entences            resulting     from

convictions that . . . have been ruled constitutionally invalid

. . . are not to be counted”), and the Armed Career Criminal

Act, see 18 U.S.C. § 921(a)(20) (barring generally the use of

“[a]ny conviction which has been expunged, or set aside”).                             That

§ 2L1.2 has no similar express exception for vacated convictions

“compels” a different result.                 Luna-Diaz, 222 F.3d at 5; see

Garcia-Lopez, 375 F.3d at 588-89.

       We   agree   with      this      persuasive    line     of    authority.         And

indeed, Moreno-Tapia himself does not really take issue with

this straightforward reading of § 2L1.2.                          Instead, he argues

that    there   should       be    an   exception     to   the    general       rule   that

§ 2L1.2 reaches convictions valid at the time of deportation for

convictions     that      subsequently        are     vacated       on    constitutional

grounds.        For support, he points to Luna-Diaz, which leaves

                                            23
open the possibility of such an exception, noting that “allowing

§ 2L1.2(b)’s enhancement to rest on a prior conviction vacated

as a result of a constitutional infirmity, egregious error of

law,    or    determination        of    innocence,          might     in    some     limited

circumstances raise constitutional due process concerns.”                                   222

F.3d at 6 n.5.             We similarly left the question open in our

unpublished decision in Moran-Rosario, recognizing the potential

exception      flagged      in     Luna-Diaz         but     finding    that        any    such

exception was not implicated on the facts of that case.                                  466 F.

App’x at 258-59.

       We    again   have     no      occasion       to    decide      the    issue.         As

explained above, because Padilla does not apply retroactively,

Moreno-Tapia’s       state       convictions          were    not    unconstitutionally

obtained.      Nor, as the district court emphasized, has Moreno-

Tapia   contended      that      he     is    actually       innocent        of    the    state

indecent      liberties       charges.               Accordingly,       application          of

§ 2L1.2’s 12-level enhancement does not implicate the potential

due process concerns articulated in Luna-Diaz and Moran-Rosario.

Cf. Garcia-Lopez, 375 F.3d at 589 (applying § 2L1.2 enhancement

where conviction vacated on state-law grounds).                                   Under these

circumstances,       the    district         court    correctly      applied        § 2L1.2’s

12-level increase to Moreno-Tapia’s offense level, and we affirm

its sentencing determination.



                                              24
                            III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             25
