                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4250


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHRISTIAN ORLANDO TABORA GUTIERREZ, a/k/a Orlando Edgardo
Tabora Chavez,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:11-cr-00251-HEH-1)


Submitted:   October 31, 2012             Decided:   November 8, 2012


Before NIEMEYER, KING, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, Richmond, Virginia, for Appellant.    Neil H. MacBride,
United States Attorney, S. David Schiller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Christian         Orlando       Tabora         Gutierrez,       a    native         and

citizen of Honduras, 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 statutory requirements for a

collateral attack on his prior removal order.                          Finding no error,

we affirm.

            In a prosecution for illegal reentry after removal, a

defendant      may    mount    a     successful            collateral       attack     on        the

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).

            Because       these           conditions          are      listed         in        the

conjunctive,      a    defendant         must       show    all     three       in   order        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

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requirements, the illegal reentry charge must be dismissed as a

matter of law.”          El Shami, 434 F.3d at 663.                    The failure to

provide an alien with written notice of his deportation hearing

deprives him of his right to seek administrative relief, and

thus the first two requirements for a collateral attack under

§ 1326(d) are satisfied.            Id. at 663-64.            This court reviews de

novo the district court’s denial of a motion to dismiss a charge

under 8 U.S.C. § 1326(d).              Id. at 663.

           After conducting a de novo review of the record, we

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

received written notice of the date, time and location of his

original deportation hearing.               Further, the evidence of record

supports     the       district         court’s      finding        that       Gutierrez

specifically declined in writing to administratively contest his

removals from the United States, and there is no indication that

these waivers were anything but knowing and intelligent.

           Because Gutierrez 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

Gutierrez’s motion to dismiss the indictment and the judgment.

We   dispense    with     oral    argument      because       the   facts     and   legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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