                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 23, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-20305
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                        MARTIN MACIAS-CRUZ,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-01-CR-898-ALL


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

          Martin Macias-Cruz (Macias) appeals from his illegal

reentry conviction pursuant to 8 U.S.C. § 1326(b).     A prior panel

of this court considered Macias’s appeal and issued an opinion

affirming the judgment of the district court.       United States v.

Macias-Cruz, No. 03-20305, 2003 WL 22880723 at **1 (5th Cir.

Dec. 5, 2003)(unpublished). That opinion was vacated on January 7,

2004, when the prior panel granted rehearing.       United States v.



     *
      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this opinion should not be published and is not precedent except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.
Macias-Cruz, No. 03-20305, 2004 WL 48915 (5th Cir. Jan. 7, 2004)

(unpublished), vacating 2003 WL 2280723.

          Macias-Cruz challenges his conviction for illegal reentry

in violation of 8 U.S.C. § 1326, arguing that the underlying 1998

deportation order was fundamentally unfair and deprived him of

administrative and judicial review. He argues that he was actually

prejudiced      by     the    1998    deportation    proceeding        because   the

immigration judge ordered him deported based on the mistaken belief

that his 1994 assault conviction was an “aggravated felony.”

          Because Macias-Cruz did not raise this issue in the

district court, our review is for plain error.                  See United States

v. Olano, 507 U.S. 725, 733 (1993).                 In order to collaterally

challenge a prior deportation order in a criminal proceeding under

8 U.S.C. § 1326, the alien must “establish that (1) the prior

hearing was fundamentally unfair; (2) the hearing effectively

eliminated the right of the alien to challenge the hearing by means

of   judicial        review   of     the   order;   and   (3)    the     procedural

deficiencies caused the alien actual prejudice.” See United States

v. Lopez-Ortiz, 313 F.3d 225, 229 (2002), cert. denied, 537 U.S.

1135 (2003); see also 8 U.S.C. § 1326(d)(setting forth requirements

for challenge to validity of a deportation order in a criminal

proceeding, including, inter alia, the requirement that the “alien

exhausted any administrative remedies that may have been available

to seek relief against the order”).



                                           2
          Macias-Cruz   has   not   made   the   requisite   showing   for

challenging the validity of his prior deportation order.               See

Lopez-Ortiz, 313 F.3d at 229; 8 U.S.C. § 1326(d).       Thus, he has not

demonstrated plain error with respect to his challenge to his

criminal conviction pursuant to 8 U.S.C. § 1326 on the ground that

his 1998 deportation order violated due process.       Accordingly, the

judgment of the district court is AFFIRMED.




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