                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4834



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus

JAIME CISNEROS-GARCIA, a/k/a Marcos          Jaime
Garcia, a/k/a Marco Antonio Cruz,

                                                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-96)


Argued:   September 22, 2005              Decided:   December 14, 2005


Before TRAXLER and GREGORY, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant.    Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.      ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Joshua B. Howard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Defendant-Appellant, Jaime Cisneros-Garcia, appeals from his

125 month prison sentence for being a previously deported alien

found in the United States in violation of 8 U.S.C. §§ 1326(a)1 and

(b)(2).2      As   explained   below,    we   affirm     Cisneros-Garcia’s

conviction,   however,   we    vacate   his   sentence    and   remand   for

resentencing.




     1
      Subject to subsection (b) of this section, any alien who--

     (1) has been denied admission, excluded, deported, or
     removed or has departed the United States while an order
     of exclusion, deportation, or removal is outstanding, and
     thereafter
     (2) enters, attempts to enter, or is at any time found
     in, the United States, unless (A) prior to his
     reembarkation at a place outside the United States or his
     application for admission from foreign contiguous
     territory, the Attorney General has expressly consented
     to such alien's reapplying for admission; or (B) with
     respect to an alien previously denied admission and
     removed, unless such alien shall establish that he was
     not required to obtain such advance consent under this
     chapter or any prior Act,

     shall be fined under Title 18, or imprisoned not more
     than 2 years, or both.
8 U.S.C. § 1326(a).
     2
      “[I]n the case of any alien described in such subsection . .
. whose removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under such Title,
imprisoned not more than 20 years, or both.”           8 U.S.C. §
1326(b)(2).

                                    2
                                      I.

     Cisneros-Garcia claims that the district judge erred in (i)

denying his motion for judgment of acquittal; (ii) applying a

sixteen offense level enhancement called for under the sentencing

guidelines; and (iii) applying three criminal history points rather

than two criminal history points.

     Cisneros-Garcia’s trial began on October 16, 2003. The United

States called as its first witness Special Agent Jose Romero, whose

testimony was used to lay the foundation of the case.                On cross-

examination    of   Romero,   defense      counsel,   for    the   first   time,

challenged the validity of the prior deportation order and asked

that the issue go to the jury as an affirmative defense.                     The

government objected to the line of questioning and presented the

district court with case law to support their position that a prior

deportation is a matter of law for the court rather than the jury

to decide.    The district court found that, in light of his prior

conviction    for   an   aggravated   felony,    Cisneros-Garcia       did   not

present evidence to support that the deportation was fundamentally

unfair and sustained the government’s objection.

     At the close of the government’s case, the defendant made a

motion for judgment of acquittal pursuant to Federal Rule of

Criminal Procedure 29, asserting that the government had not proven

his actual deportation prior to his re-entry.               The district court

denied the motion.       Defense counsel rested without presenting any


                                      3
evidence and renewed his Rule 29 motion, which again was denied.

The jury found the defendant guilty on October 17, 2003.                  Defense

counsel made a Rule 29 motion for reconsideration “due to the

ineffectiveness       of   counsel   in       failing   adequately   to    assist

[Defendant] in his defense.”              (J.A. 229-66.)      This motion was

denied.

     The presentence report (PSR) assessed a base offense level of

eight,    with   an   additional     sixteen      level   enhancement     because

Cisneros-Garcia had been previously deported after conviction of an

aggravated felony for which the sentence imposed exceeded thirteen

months.   See § 2L1.2(b)(1)(A)(I).             The PSR reflected a subtotal of

ten criminal history points.          The PSR called for two additional

criminal history points because the defendant committed the new

offense while on probation for a prior offense.               See § 4A1.1(d).

The PSR also called for an additional one criminal history point

because the new offense was committed less than two years from his

release for prior offenses.            See § 4A1.1(e).          These factors

resulted in a total of thirteen criminal history points and a

criminal history category of VI.                The defendant opposed the §§

4a1.1(d) and (e) three criminal history points and instead argued

for two criminal history points.              The district court overruled the

objection.

     The district court adopted an offense level of 24 and a

criminal history category of VI and sentenced Cisneros-Garcia to


                                          4
125   months   in   prison.     The   sentencing   court     also   stated   a

provisional sentence, treating the guidelines as advisory, of the

same period of months.



                                      II.

      Cisneros-Garcia first claims that the district court erred in

denying his motion for judgment of acquittal on the basis that his

earlier deportation proceeding was conducted without sufficient

procedural due process.         He seeks to collaterally attack the

validity of the underlying deportation order.

      Cisneros-Garcia asserts that a warrant of removal/deportation

was   improperly    issued    and   executed   while   the   appeal   of   his

deportation was pending.        He argues that because his appeal was

pending, execution of the warrant was automatically stayed pending

the appeal.     See 8 C.F.R. § 3.6.         Consequently, he argues that

while he “departed the United States” he did not do so “while an

order of exclusion, deportation, or removal [was] outstanding.”

      An illegal alien has almost no right to remain in the United

States.   See Appiah v. United States, 202 F.3d 704, 709 (4th Cir.

2000).    Suspension of deportation is an act of grace that rests

entirely in the discretion of the Attorney General.                   See id.

However, where a determination in an administrative proceeding is

to play a critical role in a later criminal sanction, there must be

some meaningful review of the administrative proceeding.                   See


                                       5
United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987).

“Depriving an alien of the right to have the disposition in a

deportation hearing reviewed in a judicial forum requires, at a

minimum, that review be made available in any subsequent proceeding

in which the result of the deportation proceeding is used to

establish an element of a criminal offense.”    Id. at 838.     Congress

codified the protections mandated by Mendoza-Lopez in 8 U.S.C. §

1326(d).   See United States v. Wilson, 316 F.3d 506, 510 n. 1. (4th

Cir. 2003).   Under 8 U.S.C. § 1326(d),

      In a criminal proceeding under this section, an alien may
      not challenge the validity of the deportation order
      described in subsection (a)(1) or subsection (b) unless
      the alien demonstrates that--
           (1) the alien exhausted any administrative remedies
      that may have been available to seek relief against the
      order;
           (2) the deportation proceedings at which the order
      was issued improperly deprived the alien of the
      opportunity for judicial review; and
           (3) the entry of the order was fundamentally unfair.

The fundamental unfairness prong has two sub-parts.        A defendant

must show: (1) his due process rights were violated by defects in

the   underlying   deportation   proceeding;   and   (2)   he   suffered

prejudice as a result of the defects.   See Wilson, 316 F.3d at 510.

A showing of prejudice requires a defendant to prove a reasonable

likelihood that, but for the errors complained of, he would not

have been deported.    See id.

      Appellant did not challenge his prior deportation before

trial, but instead attempted to collaterally attack his prior


                                   6
deportation in front of the jury.            While § 1326(d) permits an alien

to challenge the legality of his prior deportation order, it was

not   intended    that   the    validity       of     a    prior     deportation   be

contestable as part of a § 1326 jury trial.                    Mendoza-Lopez, 481

U.S. at 836.       Instead, any review of the legality of a prior

deportation order should be undertaken pretrial: “The [Mendoza-

Lopez] Court concluded that since lawful deportation was a material

element of the statutory offense, due process required, in this

limited   situation,     a    pretrial       review       of   whether     the   prior

deportation order was lawful.”           Smith v. Ashcroft, 295 F.3d 425,

431 (4th Cir. 2002) (emphasis in original).

      Appellant’s    effort     to   attack     the       validity    of   his   prior

deportation in front of the jury does not fit the niche carved out

by Mendoza-Lopez because it did not come to the judge before trial.

Having failed to present the issue to the district court before

trial, the appellant waived any challenge he may have had to

collaterally attack his prior deportation.

      Even if Cisneros-Garcia had not waived his right to challenge

the legality of his prior deportation before trial, the district

judge properly denied his motion for judgment of acquittal.                        As

discussed above, the appellant must first establish that his due

process   rights    were      violated   by     defects        in    the   underlying

deportation proceeding.        The first step in evaluating a procedural

due   process    claim   is    determining      whether        a    constitutionally


                                         7
protected interest has been implicated.      See Tigrett v. Rector &

Visitors of Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002).

Appellant concedes that he was seeking a form of discretionary

relief from the deportation order pursuant to § 212(c) of the

Immigration   and   Nationality   Act.     However,    this   Court   has

explicitly held that there is no due process right to § 212(c)

relief.   See Wilson, 316 F.3d 506; Smith, 295 F.3d 425.       There can

be no due process violation where a defendant is not entitled to

seek purely discretionary § 212(c) relief.

     Appellant has also failed to show that he suffered prejudice

as a result of the claimed violation.       To establish prejudice a

defendant must show a reasonable likelihood that but for the errors

complained of, the defendant would not have been deported.            See

Wilson, 316 F.3d 506.    This court has stated that “when an alien

has a serious record of criminal activity, he must demonstrate

‘unusual or outstanding’ equities in order to be eligible for a

favorable exercise of discretion.”       Id. at 511.    Cisneros-Garcia

had at least two prior convictions for transporting or selling

narcotic controlled substances and one probation revocation at the

time of his deportation proceedings.       Appellant was convicted of

using or being under the influence of controlled substances prior

to deportation.     Appellant has failed to show that he would not

have been deported but for the alleged due process violations. The

district court correctly concluded that defendant demonstrated no


                                   8
equities to support a finding of prejudice and that the collateral

attack was invalid.



                                       III.

     Cisneros-Garcia next claims that the district court erred in

ruling   that     the   alleged    fact   of    a   deportation     following   an

aggravated felony is not an element of the crime; rejecting his

challenge   to     that    element;    and     overruling   his     objection   at

sentencing to a sixteen offense level enhancement.

     As noted above, the PSR establishes a base offense level of

eight and enhances this by sixteen levels based on the deportation

following a conviction of a felony that is a drug trafficking

offense for which the sentence imposed exceeded thirteen months.

See § 2L1.2(b)(1)(A)(I).          Appellant argues that this sixteen point

enhancement was improper because it violates the Sixth Amendment

right to a jury trial on each essential element of the crime.

Appellant clarifies that his “argument is not that the federal

sentencing guidelines are unconstitutional, but that the guidelines

are subject to constitutional constraints including the limitation

on conditions under which a statutory maximum sentence, as the

concept is defined under Blakely [v. Washington, 542 U.S. 296

(2004)],    may    be     enhanced.”      (Appellant’s      Brief    p.   38-39.)

Appellant further asserts that the facts do not support such a

sixteen point enhancement.


                                          9
     Subsection (a) of 8 U.S.C. § 1326 sets forth the elements of

the crime of reentry by a previously deported alien and does not

include reference to an alien’s criminal history.               Subsection (b)

of 8 U.S.C. § 1326 provides enhanced penalties for the crime and

specifically addresses the sentencing consequences of a prior

aggravated felony conviction.            The United States Supreme Court

addressed    the    distinction    between   §§   1326    (a)   and   (b)(2)   in

Alamendarez-Torres v. United States, 523 U.S. 224 (1998).                       In

Alamendarez-Torres the Court stated that “[i]f subsection (b)(2)

sets forth a separate crime, the Government would be required to

prove to the jury that the defendant was previously deported

‘subsequent    to    a    conviction   for   commission    of   an    aggravated

felony.’”    Id. at 234-235.       The Court then held that Congress had

set forth a sentencing factor in subsection (b)(2) and not a

separate criminal offense.         See id. at 235.

     Prior    to    his    1999   deportation,    the    appellant     had   been

convicted of more than one felony drug trafficking offense.                  These

crimes constitute aggravated felonies as defined in 8 U.S.C. §

1101(a)(43).       The United States gave the appellant notice that it

intended to pursue the sentencing enhancement by charging in the

indictment that he was “an alien who had been previously convicted

of an aggravated felony.”          (J.A. 14.)     At trial, the appellant

conceded    the    prior    aggravated   felony   conviction      rather     than

requiring the government to establish the details of his criminal


                                       10
history before the jury.        With the agreement of the district court

and   the   appellant,   the     United    States   submitted   a   redacted

indictment to the jury that omitted reference to the aggravated

felonies.      The    parties     redacted   references   to    appellant’s

aggravated felonies in other trial exhibits as well.            In light of

the stipulations of the parties at trial and the documentation of

appellant’s criminal history prepared for the sentencing court, the

district court correctly applied the sixteen level enhancement.

      Additionally, we note that the Supreme Court held in Blakely

that the jury trial requirement of facts that increase a criminal

defendant’s statutory maximum sentence does not apply to “the fact

of a prior conviction.”     Blakely, 542 U.S. at 301.       This exception

was recently reaffirmed in the decision of United States v. Booker,

125 S.Ct. 738 (2005).



                                     IV.

      Appellant’s last claim is that the district court erred in

applying three criminal history points rather than two criminal

history points.3     Appellant argues that to add more than two points

for his being found in the United States within two years of his



      3
      While the appellant refers to this as an “enhancement,” this
is not an appropriate use of the term as it is used in the
Sentencing Guidelines. To determine a defendant’s criminal history
category under § 4A1.1, one is to add the total points from items
(a) through (f).       These points are not referred to as
“enhancements.”

                                      11
release from his 2002 state conviction (§ 4A1.1(e)) would be to

take judicial notice of facts not decided by the jury.4               In his

brief appellant states:

     To attribute more to Mr. Garcia would be to take judicial
     notice of facts not decided by the jury, such as the
     alleged reentry into the United States hours after he was
     deported and the alleged status of being found in the
     United States during the three days that he was on
     probation in 2002 for the very same offense that gave
     rise to the two-point enhancement of being found in the
     United States on May 9, 2003, within two years of his
     release from this 2002 conviction. This would appear to
     inflict multiple punishments for the same conduct and to
     result in excessive and unfair punishment.

(Appellant’s Brief p. 41-42.)

     The total of the appellant’s criminal history points was

thirteen which placed him in a criminal history category of VI.            In

determining the appellant’s criminal history category, the district

court    added   two   points,   pursuant   to   §   4A1.1(d),   because   the

defendant     was   on   probation   for    Trafficking     in   Cocaine    by

Possession.      The district court also added one point, pursuant to

§ 4A1.1(e), because the instant offense was committed less than two

years following the defendant’s release from custody.5




     4
      As discussed below, the district court only added one point
pursuant to § 4A1.1(e), however, the appellant apparently
acknowledges that under § 4A1.1(e) two points are to be added
unless two points have already been added under item (d).
     5
      As mentioned above, the appellant does not challenge the
addition of this one point and apparently concedes that two points
are to be added if no points are added under item (d).

                                     12
     When considering the appellant’s challenge to the district

court’s application of two criminal history points pursuant to §

4A1.1(d),6 we must determine whether the factual basis for the

application comes within the prior conviction exception.               As

previously noted, the Supreme Court held in Blakely that the jury

trial requirement of facts that increase a criminal defendant’s

statutory maximum sentence does not apply to “the fact of a prior

conviction,”   Blakely, 542 U.S. at 301, and this exception was

recently reaffirmed in Booker, 125 S.Ct. 738 (2005).

     However, subsequent to Booker, the Supreme Court held in

Shepard v. United States, 125 S.Ct. 1254, 1262-63 (2005), that the

Sixth Amendment is violated when a sentence increase is based on a

disputed fact about a prior conviction that is not evident from the

prior judicial record.      Specifically, the Supreme Court held in

Shepard that “[w]hile the disputed fact here can be described as a

fact about a prior conviction, it is too far removed from the

conclusive significance of a prior judicial record . . . .”         Id. at

1262. Likewise, this court recently found in United States v.

Washington, 404 F.3d 834, 842-43 (4th Cir. 2005), that a sentencing

court’s   reliance   on   facts   outside   of   the   prior indictment to




     6
      While the government apparently interprets Cisneros-Garcia’s
argument to be a challenge to § 4A1.1(e) and not (d), we find that
the appellant has in fact presented a challenge to the application
of § 4A1.1(d).

                                    13
resolve a disputed fact about a prior conviction was error under

Booker and Shepard.

     In   this   case,   the   district   court   relied   on   information

presented in the PSR to apply two criminal history points pursuant

to 4A1.1(d), which allows for those points to be added if the

appellant was on probation at the time of the instant offense.

However, it is not apparent from the judicial record that the

appellant was on probation at the time of the instant offense,

which according to the indictment occurred on May 9, 2003.              In

fact, just the opposite is apparent as the PSR reflects that the

appellant’s probation was revoked on February 21, 2002.

     Therefore, we find that the sentence was increased beyond the

maximum permitted by the facts found by the jury or, as far as we

can tell, admitted by the defendant.              Without the additional

criminal history points under § 4A1.1(d) the appellant would have

been in the lower criminal history category of V and the resulting

guideline range of 92-115 months as opposed to 100-125 months. The

district court’s application of § 4A1.1(d) in this case resulted in

at least ten months of additional imprisonment for the appellant.

Under these circumstances, “the sentence imposed by the district

court as a result of the Sixth Amendment violation was longer than

that to which he would otherwise be subject,” United States v.

Hughes, 401 F.3d 540, 548 (4th Cir. 2005) (quoting United States v.

Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc)), and the


                                    14
sentence contravened the appellant’s substantial rights.                      See

Hughes, 401 F.3d at 548.



                                       V.

     We   are    of   the   opinion   that    the   district    court   properly

considered      the   defendant’s     prior   deportation      and   affirm   the

conviction.       However,    pursuant       to   the   foregoing,    we   vacate

Cisneros-Garcia’s sentence and remand for resentencing.7



                                                          AFFIRMED IN PART,
                                              VACATED IN PART, AND REMANDED




     7
      On remand, the district court should first determine the
appropriate sentencing range under the guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors identified in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2005) and then impose a sentence. Hughes, 401 F.3d at
546. If that sentence falls outside the guideline range, the court
should explain its reasons for the departure as required by 18
U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005). Hughes, 401 F.3d
at 546.   The sentence must be “within the statutory prescribed
range and . . . reasonable.” Id. at 547.

                                       15
