                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4924


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GELMY RODOLFO ORTIZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00157-RJC-1)


Submitted:   June 26, 2012                 Decided:   July 19, 2012


Before DAVIS, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henderson Hill, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Ross H. Richardson, Assistant Federal Defender, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Gelmy     Rodolfo     Ortiz         appeals     his     conviction       for

unlawful reentry after deportation by an aggravated felon, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2006).                        On appeal, he

challenges the district court’s denial of his motion to dismiss

the indictment, arguing that he satisfied the three requirements

for a collateral attack on his prior removal order set forth in

8 U.S.C. § 1326(d) (2006).           Finding no error, we affirm.

             In a prosecution for illegal reentry after removal, a

defendant     may    mount   a    successful           collateral    attack     on    the

underlying removal order constituting an element of the offense

if he can show:         (1) he exhausted any administrative remedies

that may have been available to challenge the order of removal;

(2) he was effectively deprived of his right to judicial review

of   the   removal    order;     and    (3)      the    removal     proceedings      were

fundamentally unfair.            8 U.S.C. § 1326(d) (2006); see United

States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v.

El Shami, 434 F.3d 659, 663 (4th Cir. 2005).                        A defendant must

satisfy all three of the above requirements                   to prevail.       United

States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003), overruled

on   other   grounds    by   Lopez     v.       Gonzales,   549     U.S.   47   (2006).

“However, if the defendant satisfies all three requirements, the

illegal reentry charge must be dismissed as a matter of law.”

El Shami, 434 F.3d at 663.             This court conducts a de novo review

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of    the   district      court’s       denial     of   a    motion    to    dismiss   an

indictment count charging an offense under 8 U.S.C. § 1326(d).

Id.

              Courts      have     generally        held     that     “the    exhaustion

requirement [of § 1326(d)(1)] must be excused where an alien’s

failure to exhaust results from an invalid waiver of the right

to an administrative appeal.”                 United States v. Sosa, 387 F.3d

131, 136 (2d Cir. 2004); accord United States v. Reyes-Bonilla,

671 F.3d 1036, 1043 (9th Cir. 2012) (“If Reyes did not validly

waive   his      right    of    appeal,   the      first    two   requirements      under

§ 1326(d) will be satisfied.”); United States v. Martinez-Rocha,

337 F.3d 566, 569 (6th Cir. 2003).                          If, however, “an alien

knowingly and voluntarily waives his right to appeal an order of

deportation, then his failure to exhaust administrative remedies

will bar collateral attack on the order in a subsequent illegal

reentry prosecution under § 1326(d).”                       United States v. Cerna,

603 F.3d 32, 38 (2d Cir. 2010).

              After conducting a de novo review of the record, we

discern     no    error    in    the   district      court’s      finding    that   Ortiz

knowingly and voluntarily waived his right to appeal after being

advised of his rights.             Although Ortiz contends on appeal that

he “easily met the first two § 1326(d) factors because he was

specifically       instructed          that   he     had     no     right    to   contest

deportation and would not be allowed to see an immigration judge

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–   depriving       him     both     of    judicial        review     and       of    any

administrative remedies,” we disagree.                  Ortiz does not dispute

on appeal that he signed the waiver on page two of the Notice of

Intent.      Moreover, the district court credited Deputy Matias’

testimony    that    it     was    his    practice    to    go    over    the     waiver

provisions    line-by-line         with   an   alien,   and      we   find   no      clear

error in this determination.              See Anderson v. Bessemer City, 470

U.S. 564, 574 (1985) (“Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”).         Additionally, although the district court

credited Ortiz’s claim that he was told that he had no right to

see an immigration judge, “[e]xpedited proceedings are conducted

by a [DHS] officer, not an immigration judge.”                    United States v.

Calderon-Segura,      512    F.3d    1104,     1107   (9th    Cir.    2008);      see   8

U.S.C. § 1228(b) (2006); 8 C.F.R. § 238.1 (2012).                        Thus, Ortiz

was correctly informed that he was not entitled to a hearing

before an immigration judge.

            Because Ortiz cannot satisfy the first two prongs of

§ 1326(d), we find it unnecessary to reach the issue of whether

his removal proceedings were fundamentally unfair.                       Accordingly,

we affirm the district court’s order denying Ortiz’s motion to

dismiss the indictment and the judgment.                   We dispense with oral

argument because the facts and legal contentions are adequately



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expressed in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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