           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Rocha                      No. 03-5149
        ELECTRONIC CITATION: 2003 FED App. 0251P (6th Cir.)
                    File Name: 03a0251p.06                                ASSISTANT UNITED STATES ATTORNEY, Lexington,
                                                                          Kentucky, for Appellee. ON BRIEF: Firooz T. Namei,
                                                                          Candace C. Crouse, MCKINNEY & NAMEI, Cincinnati,
UNITED STATES COURT OF APPEALS                                            Ohio, for Appellant. John Patrick Grant, Charles P. Wisdom,
                                                                          Jr., ASSISTANT UNITED STATES ATTORNEY,
                  FOR THE SIXTH CIRCUIT                                   Lexington, Kentucky, for Appellee.
                    _________________
                                                                                              _________________
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                                OPINION
                                   -                                                          _________________
                                   -   No. 03-5149
            v.                     -                                        RONALD LEE GILMAN, Circuit Judge. A federal grand
                                    >                                     jury indicted Alfonso Martinez-Rocha in May of 2002 on one
                                   ,                                      count of unlawfully reentering the United States after having
 ALFONSO MARTINEZ ROCHA,           -
          Defendant-Appellant. -                                          been deported. Martinez-Rocha moved to dismiss the
                                                                          indictment on the ground that the prior order of deportation
                                  N                                       was predicated on the legal error that his 1999 driving-under-
       Appeal from the United States District Court                       the-influence (DUI) conviction was an “aggravated felony.”
    for the Eastern District of Kentucky at Covington.                    After the district court denied his motion, Martinez-Rocha
    No. 02-00030—Danny C. Reeves, District Judge.                         entered a conditional plea of guilty. He then appealed in
                                                                          order to challenge the alleged legal error. For the reasons set
                     Argued: June 18, 2003                                forth below, we AFFIRM the judgment of the district court.

               Decided and Filed: July 25, 2003                                               I. BACKGROUND

        Before: BOGGS and GILMAN, Circuit Judges;                         A. Factual background
                 MARBLEY, District Judge.*
                                                                             Martinez-Rocha is a citizen of Mexico who entered the
                      _________________                                   United States without authorization in 1993. Approximately
                                                                          six years later he was convicted in a Kentucky state court of
                            COUNSEL                                       DUI and was sentenced to 18 months in prison, followed by
                                                                          a probationary term. After Martinez-Rocha was released
ARGUED: Firooz T. Namei, MCKINNEY & NAMEI,                                from prison, he was arrested in Kentucky for violating the
Cincinnati, Ohio, for Appellant. John Patrick Grant,                      terms of his probation. The Immigration and Naturalization
                                                                          Service (INS) took him into custody. According to INS
                                                                          Agent Michael Galvan, who spoke with Martinez-Rocha
                                                                          shortly thereafter, Martinez-Rocha “said he wanted to go back
    *
     The Honorable Algenon L. Marbley, United States District Judge for   to Mexico and that he wanted to do it as soon as possible. He
the Southern District of Ohio, sitting by designation.

                                  1
No. 03-5149                      United States v. Rocha          3   4      United States v. Rocha                         No. 03-5149

actually contacted his probation officer, who in turn contacted      B. Procedural background
me.”
                                                                       A single-count indictment was returned against Martinez-
   Martinez-Rocha was then transported to Louisiana. He              Rocha, charging him with violating 8 U.S.C. § 1326, which
received a Notice of Intent to Issue Final Administrative            prescribes a criminal penalty for “any alien who . . . (1) has
Removal Order in June of 2000. This notice advised him that          been . . . deported . . ., and thereafter (2) enters . . . the United
the INS was seeking his deportation pursuant to 8 U.S.C.             States” without authorization. 8 U.S.C. § 1326(a). The
§ 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is        indictment alleged that Martinez-Rocha was “an alien who
convicted of an aggravated felony at any time after admission        had previously been deported following his conviction for an
is deportable.”                                                      aggravated felony.” An enhanced penalty applies to any alien
                                                                     “whose removal was subsequent to a conviction for
  On June 30, 2000, Martinez-Rocha signed an English-                commission of an aggravated felony,” pursuant to 8 U.S.C.
language form acknowledging that he had received the Notice          § 1326(b)(2).
of Intent. The form memorialized that the notice had been
read to Martinez-Rocha in Spanish. Martinez-Rocha also                  Martinez-Rocha filed a motion to dismiss the indictment.
signed his name below the following statement:                       He contended that his 1999 DUI conviction should not have
                                                                     been considered an aggravated felony, so that the order of
  I admit the allegations and charge in this Notice of Intent.       removal in 2000 was erroneous. The government countered
  I admit that I am deportable and acknowledge that I am             that the underlying deportation order was not subject to
  not eligible for any form of relief from removal. I waive          collateral attack. After conducting a hearing, the district court
  my right to rebut and contest the above charges and my             denied the motion to dismiss. Martinez-Rocha then entered
  right to file a petition for review of the Final Removal           a conditional plea of guilty. He was sentenced to 15 months
  Order. I do not wish to request withholding or deferral            in prison. Although the district court also imposed a two-year
  of removal. I wish to be removed to Mexico.                        term of supervised release, the judgment noted that this term
                                                                     would not be applicable if Martinez-Rocha was deported after
The INS issued a final administrative removal order on the           his imprisonment. This timely appeal followed.
same day. On July 13, 2000, Martinez-Rocha was deported.
                                                                                             II. ANALYSIS
  A few months later, Martinez-Rocha again entered the
United States without authorization and returned to Kentucky.          Martinez-Rocha argues that his 1999 DUI conviction
State authorities arrested him in April of 2002 because he had       should not have been characterized as an aggravated felony.
not paid the financial penalties that he had incurred as the         But a defendant charged with unlawfully reentering the
result of a traffic conviction. An INS agent then interviewed        United States after having been ordered deported may not
Martinez-Rocha, who acknowledged that he had been                    challenge the validity of the underlying deportation order
deported in July of 2000.                                            unless three statutory conditions are satisfied. The defendant
                                                                     must demonstrate that:
                                                                         (1) the alien exhausted any administrative remedies that
                                                                         may have been available to seek relief against the order;
No. 03-5149                      United States v. Rocha      5    6     United States v. Rocha                        No. 03-5149

  (2) the deportation proceedings at which the order was          of right to an administrative appeal did not comport with due
  issued improperly deprived the alien of the opportunity         process.”).
  for judicial review; and
                                                                    The district court, however, found that Martinez-Rocha’s
  (3) the entry of the order was fundamentally unfair.            waiver was considered and intelligent. We will not reverse a
                                                                  district court’s factual finding unless it is clearly erroneous.
8 U.S.C. § 1326(d).                                               United States v. Sykes, 292 F.3d 495, 497 (6th Cir.) (“A
                                                                  district court’s determination that a waiver was knowingly
   This court has not directly addressed the standard of review   and voluntarily made is reviewed for clear error.”), cert.
for a collateral challenge under 8 U.S.C. § 1326(d) to a prior    denied, 123 S. Ct. 400 (2002).
order of deportation. The circuits that have addressed the
issue, however, are unanimous in deciding that de novo              Although Martinez-Rocha testified that he did not fully
review is appropriate. E.g., United States v. Zalaya, 293 F.3d    understand the waiver because he did not speak “the whole
1294, 1297 (11th Cir. 2002) (holding that a district court’s      English,” he signed a form stating that he did not wish to
denial of a motion to dismiss an indictment on the basis of a     contest the charges that was read to him in both English and
collateral challenge to the underlying deportation order “is an   Spanish. He also conferred with INS agents and with the
issue of law to be reviewed de novo on appeal,” and noting        Mexican consulate prior to being deported, and his waiver
the agreement of the Second and Ninth Circuits). This             was consistent with the testimony of Agent Galvan that
matches the standard applicable to a review of the district       Martinez-Rocha had expressed a desire to return to Mexico as
court’s denial of a motion to dismiss an indictment on            soon as possible. In addition, Martinez-Rocha’s testimony in
grounds that involve questions of law. E.g., In re Ford, 987      the district court reflects his command of English. The
F.2d 334, 339 (6th Cir. 1992) (“This court reviews de novo a      district court therefore did not clearly err in crediting the
district court’s denial of a motion to dismiss an indictment on   testimony of Agent Galvan and the documentary evidence
the grounds of double jeopardy.”). We find these authorities      that Martinez-Rocha’s waiver was a knowing and considered
persuasive, and therefore will review the district court’s        choice. See Anderson v. Bessemer City, 470 U.S. 564, 574
denial of Martinez-Rocha’s motion de novo.                        (1985) (“Where there are two permissible views of the
                                                                  evidence, the factfinder’s choice between them cannot be
  Martinez-Rocha admittedly did not exhaust his                   clearly erroneous.”); United States v. Cruse, No. 01-5874,
administrative remedies when he waived his right to contest       2003 WL 344337, at *5 (6th Cir. Feb. 7, 2003) (holding that
the ground on which he was deportable. But he claims that         the district court did not clearly err in finding that the college-
his waiver was invalid because he did not understand at the       educated defendant had knowingly and intelligently waived
time that he was, in fact, waiving his right to contest the       his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by
charges against him. See United States v. Mendoza-Lopez,          signing a waiver form so indicating, despite the defendant’s
481 U.S. 828, 840 (1987) (holding that an alien’s waiver of       testimony that “he neither read nor understood the waiver
the right to apply for suspension of deportation was invalid      form before signing it”); United States v. Rangel de Aguilar,
where it was not “considered or intelligent”); United States v.   308 F.3d 1134, 1138-39 (10th Cir. 2002) (holding that a
Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (“The            defendant had no basis for collateral attack on her deportation
exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar           order where the evidence indicated that she had made a
collateral review of a deportation proceeding when the waiver     considered and intelligent waiver of her right to contest the
No. 03-5149                       United States v. Rocha       7

deportation proceedings), cert. denied, 123 S. Ct. 1372
(2003).
  At oral argument, counsel for Martinez-Rocha contended
that the waiver could not have truly been a considered choice
because other immigration options were available to
Martinez-Rocha in the summer of 2000 that did not have the
negative consequences of a deportation order. But a waiver
need not be the best choice under the circumstances in order
for it to be “considered and intelligent.” See United States v.
Turner, 287 F.3d 980, 984 (10th Cir. 2002) (acknowledging
that “[t]he use of the word intelligent within the standard used
to determine an effective waiver of counsel gives this court
some pause,” but concluding that “knowingly and
intelligently waiving the right to counsel is different from
making a wise decision”); cf. United States v. Peck, No. 01-
5586, 2003 WL 1465563, at *4 (6th Cir. Mar. 19, 2003)
(“Although the decision to represent himself may not have
been in [the defendant’s] best interest, the record supports the
district court’s conclusion that [the defendant] was competent
to make that choice, and that he did so knowingly and
voluntarily.”). Because the district court did not clearly err in
deciding that the waiver at issue here met those criteria,
Martinez-Rocha has failed to satisfy any of the requirements
of 8 U.S.C. § 1326(d). He is therefore barred from
collaterally attacking his prior order of deportation.
                    III. CONCLUSION
  For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
