                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 29, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-50426
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EDUARDO MADRID-MANRIQUEZ,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                   USDC No. 3:03-CR-1587-ALL-PRM
                        --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Eduardo Madrid-Manriquez (“Madrid”) appeals from his bench-

trial conviction of illegal-reentry, a violation of 8 U.S.C.

§ 1326.   Madrid challenges the district court’s denial of his

motion to dismiss his indictment on the ground that the January

2000 deportation forming the basis for the indictment in the

instant case violated his due process rights because the

deportation order was based on a 1997 conviction of driving while

intoxicated (“DWI”).   He emphasizes that in 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this opinion should not be published and is not precedent except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.
                             No. 04-50426
                                  -2-

Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001), this court held

that a felony DWI conviction could not be used as a basis for a

sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A), because it

was not a “crime of violence” and thus did not qualify as an

“aggravated felony.”     See also Leocal v. Ashcroft, 125 S. Ct.

377, 379 (2004).

     The denial of a motion to dismiss an indictment is reviewed

de novo.     United States v. Wilson, 249 F.3d 366, 371 (5th Cir.

2001).     To challenge the validity of an underlying deportation

order, an alien must establish that:     (1) the prior deportation

hearing was fundamentally unfair; (2) the hearing effectively

eliminated the alien’s right to seek judicial review of the

removal order; and (3) the procedural deficiencies caused actual

prejudice.     United States v. Lopez-Vasquez, 227 F.3d 476, 483

(5th Cir. 2000); 8 U.S.C. § 1326(d).     Madrid has failed to show

that his deportation proceeding was fundamentally unfair inasmuch

as it did not violate his procedural due process rights.     See

United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002),

cert. denied, 537 U.S. 1135 (2003).     The court need not reach the

appellants’ remaining arguments.     See id. at 231; Lopez-Vasquez,

227 F.3d at 485.

     The judgment of the district court is AFFIRMED.
