                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-12122         ELEVENTH CIRCUIT
                                                    FEBRUARY 8, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                      ACTING CLERK

                    D. C. Docket No. 08-20721-CR-WJZ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ROBERT GOLAN HILTON THOMAS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                              (February 8, 2010)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Robert Golan Hilton Thomas (“Hilton Thomas”) appeals his conviction for
illegal reentry into the United States after removal, in violation of 8 U.S.C.

§ 1326(a). After a thorough review of the record, we affirm.

      Hilton Thomas was indicted on August 5, 2008, for illegal reentry into the

United States after removal, in violation of 8 U.S.C. § 1326. On December 2,

2008, the government filed a superceding indictment, again charging Hilton

Thomas with illegal reentry and adding a count of failure to register as a sex

offender, in violation of 18 U.S.C. § 2250.

      Hilton Thomas requested and received continuances for his trial date on

September 30, October 31, and December 3, 2008. Then, on January 8, 2009, he

requested another forty-five-day continuance to enable him to obtain documents

from the Board of Immigration Appeals. The district court summarily denied the

motion.

      Hilton Thomas moved to dismiss the § 1326 charge on January 9, 2009. He

explained that he had been convicted of a sexual battery offense in 2003, had been

ordered removed in 2005, and was removed in 2006. He claimed, however, that he

had no notice of any proceedings after the removal order issued until he received a

“Warning for Failure to Deport” on September 29, 2006. As such, he was unable

to appeal the order and was denied the right to meaningful review. He asserted that




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this denial of due process allowed him to collaterally attack the underlying removal

order and the instant charge of illegal reentry.

       The court conducted a bench trial at which it denied Hilton Thomas’s

motion to dismiss.1 Hilton Thomas argued that the government could not prove

that he had been removed because the removal process had been procedurally

flawed. The court disagreed and found Hilton Thomas guilty.

       Hilton Thomas moved for rehearing, citing additional evidence that his Fifth

Amendment Rights were violated during the removal process. The district court

denied the motion, finding that Hilton Thomas had not shown that he lacked notice

of the removal order or that the removal order was fundamentally unfair. Hilton

Thomas was sentenced to sixty-three months’ imprisonment. This appeal

followed.

       On appeal, Hilton Thomas argues that the district court abused its discretion

in denying his motion for continuance and erred in denying his motion to dismiss

Count One of the indictment, charging him with illegal reentry into the United

States after removal, on the ground that his underlying removal order was invalid




       1
         The district court denied the motion to dismiss the § 1326 offense. The court, however,
dismissed the § 2250 offense, finding the statute unconstitutional. The court later vacated the
dismissal and reinstated the charge. Hilton Thomas then pleaded guilty to the § 2250 offense.

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because it was procured in a manner that violated his due process rights. We

address each issue in turn.

      I. Continuance

      We review the denial of a motion for a continuance for abuse of discretion.

United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005). The burden is on

the appellant to show that the denial of the motion resulted in specific substantial

prejudice. United States v. Davis, 967 F.2d 516, 518 (11th Cir. 1992).

      The district court did not abuse its discretion in denying Hilton Thomas’s

motion for continuance. Hilton Thomas had more than five months to prepare his

defense and obtain the records. Moreover, the records would not have shown that

the removal proceedings were fundamentally unfair. Thus, Hilton Thomas cannot

show that he was substantially prejudiced as a result of the denial and the district

court did not abuse its discretion.

      II. Motion to Dismiss

      We review de novo the district court’s denial of Hilton Thomas’s motion to

dismiss Count One on the ground of the invalidity of the underlying removal order.

United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir. 2002). To succeed on a

collateral attack on a removal order in a criminal proceeding, the alien must show:

(1) that he exhausted any administrative remedies that may have been available to



                                           4
seek relief against the order; (2) that the removal proceeding at which the order

was issued improperly deprived the alien of an opportunity for judicial review; and

(3) that the entry of the order was fundamentally unfair. Id. (citing 8 U.S.C.

§ 1326(d)). To show that the entry of the order was fundamentally unfair, the alien

must, at a minimum, demonstrate that the outcome of the removal proceeding

would have been different but for a particular error. Id. at 1298.

      The district court did not err in denying Hilton Thomas’s motion to dismiss

Count One of the indictment because Hilton Thomas failed to meet the

requirements of 8 U.S.C. § 1326(d). Hilton Thomas failed to exhaust his

administrative remedies. He was present for the telephone conference at which the

immigration judge issued the removal order, but he did not appeal that decision to

the Board of Immigration Appeals. This failure to exhaust administrative remedies

is fatal to his motion to dismiss.

      Moreover, Hilton Thomas failed to establish that the removal order was

fundamentally unfair. Hilton Thomas has offered nothing to show how he would

have been successful had he appealed the removal order. Hilton Thomas’s

criminal history confirms he was removable for having committed an aggravated

felony. Because Hilton Thomas cannot show that the outcome would have been




                                          5
different, there is no basis for his claim that the proceedings were fundamentally

unfair. Accordingly, we affirm.

      AFFIRMED.




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