                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4419



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


GERARDO RUIZ-GUTIERREZ,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-03-272)


Submitted:   December 15, 2004            Decided:   January 6, 2005


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Karen B. George, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Gerardo   Ruiz-Gutierrez   pled   guilty   to   one   count   of

unlawful reentry into the United States after removal in violation

of 8 U.S.C. § 1326(a) (2000).    He reserved the right to challenge

the district court’s denial of his motion to dismiss the indictment

based on his collateral attack of the underlying order of removal,

pursuant to 8 U.S.C. § 1326(d) (2000). In addition, Ruiz-Gutierrez

seeks to challenge the one-year term of supervised release imposed

on him at sentencing.

           In the context of a prosecution for illegal reentry after

removal, a defendant may collaterally attack the underlying removal

order by showing: (1) he has exhausted his administrative remedies

to challenge that order; (2) the removal proceedings improperly

deprived him of an opportunity for judicial review; and (3) entry

of the order was fundamentally unfair.       8 U.S.C. § 1326(d); United

States v. Mendoza-Lopez, 481 U.S. 828 (1987).         All three of these

conditions must be satisfied in order for such an attack to

succeed.   United States v. Wilson, 316 F.3d 506, 609 (4th Cir.),

cert. denied, 538 U.S. 1025 (2003).     This court conducts a de novo

review of the district court’s denial of a motion to dismiss the

indictment.   United States v. Brandon, 298 F.3d 307, 310 (4th Cir.

2002).   We hold that the district court was correct in denying the

motion to dismiss, as Ruiz-Gutierrez fails to show that the removal

order was obtained under conditions that were fundamentally unfair.


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Ruiz-Gutierrez’s argument to the contrary is patently frivolous.

In view of this holding, we need not address the argument that his

counsel’s ineffective assistance deprived Ruiz-Gutierrez of the

opportunity for judicial review of the removal order.

           Ruiz-Gutierrez also asserts that the one-year term of

supervised release, imposed on him by the district court to follow

the six-month sentence of imprisonment, is invalid because the

Supreme Court’s rationale in Blakely v. Washington, 124 S. Ct. 2531

(2004), will invalidate the Sentencing Reform Act, 18 U.S.C.A. §§

3551 et seq. (West 2000 & Supp. 2004).          In our ruling in United

States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), petition for cert.

filed, 73 U.S.L.W. 3121 (U.S. Aug. 6, 2004) (No. 04-193), we held

that   Blakely   “does   not   affect   the   operation   of   the   federal

sentencing guidelines.”        Therefore, we reject Ruiz-Gutierrez’s

challenge to his sentence.

           We affirm Ruiz-Gutierrez’s conviction and sentence.            We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                                     AFFIRMED




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