                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4666


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ELISEO MARTINEZ LOPEZ, a/k/a Eliseco Martinez Lopez,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00206-MOC-DSC-1)


Submitted:   July 28, 2016                 Decided:   August 10, 2016


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Rob Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE, PLLC,
Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose,
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Eliseo Martinez Lopez (“Martinez”) appeals his conviction for

unlawful reentry after removal following a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2012).    On appeal, he challenges the district court’s denial of

his motion to dismiss the indictment, arguing that he satisfied

the three requirements for a collateral attack on his prior removal

order set forth in 8 U.S.C. § 1326(d) (2012).                   Finding no error,

we affirm.

       In a prosecution for illegal reentry following an order of

removal, a defendant may collaterally attack the removal order

that   constitutes    an    element      of    the    offense      if   he   can   show:

“(1) [he] 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 [him]

of the opportunity for judicial review; and (3) the entry of the

order was fundamentally unfair.”               8 U.S.C. § 1326(d) (2012); see

United States v. Lopez-Collazo, __ F.3d __, __, No. 15-4312, 2016

WL   3080431,   at   *3    (4th   Cir.    June       1,   2016).        Because    these

conditions are listed in the conjunctive, a defendant must show

all three in order to prevail.                Id.    “However, if the defendant

satisfies all three requirements, the illegal reentry charge must

be dismissed as a matter of law.”              United States v. El Shami, 434

F.3d 659, 663 (4th Cir. 2005).           We conduct a de novo review of the

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district court’s denial of a motion to dismiss an indictment under

8 U.S.C. § 1326(d).     Id.

     Courts have generally held that “the exhaustion requirement

[of § 1326(d)(1)] must be excused where an alien’s failure to

exhaust    results   from   an   invalid     waiver    of   the   right   to   an

administrative appeal.”       United States v. Sosa, 387 F.3d 131, 136

(2d Cir. 2004); accord United States v. Reyes-Bonilla, 671 F.3d

1036, 1043 (9th Cir. 2012) (“If Reyes did not validly waive his

right of appeal, the first two requirements under § 1326(d) will

be satisfied.”); United States v. Martinez-Rocha, 337 F.3d 566,

569 (6th Cir. 2003); see Lopez-Collazo, __ F.3d at __, 2016 WL

3080431, at *3 (acknowledging that this approach has been “embraced

by some appellate courts”).        If, however, “an alien knowingly and

voluntarily waives his right to appeal an order of deportation,

then his failure to exhaust administrative remedies will bar

collateral attack on the order in a subsequent illegal reentry

prosecution under § 1326(d).”         United States v. Cerna, 603 F.3d

32, 38 (2d Cir. 2010).

     After conducting a de novo review, we find no error in the

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

Contrary    to   Martinez’s      arguments     on     appeal,     the   relevant

regulations permitted him to stipulate to an order of removal and

waive his right to appeal without receiving further advisals from

an immigration judge.       See 8 U.S.C. § 1229a(d) (2012); 8 C.F.R.

                                      3
§ 1003.25(b) (2016).         Additionally, based on our thorough review

of the record in this case, we conclude that Martinez’s waiver was

valid and that he knowingly and voluntarily waived his right to a

hearing before an immigration judge and his right to appeal his

order     of   removal.      Accordingly,    Martinez   failed      to   exhaust

available administrative remedies to challenge his removal order

and is thus barred from collaterally attacking the order under 8

U.S.C. § 1326(d). *

      We therefore uphold the district court’s denial of Martinez’s

motion to dismiss the indictment and affirm the criminal judgment.

We   dispense    with     oral   argument   because   the   facts    and   legal

contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                         AFFIRMED




      *Because Martinez fails to demonstrate that his waiver was
invalid, he cannot establish the first two requirements of 8 U.S.C.
§ 1326(d) — that he exhausted his administrative remedies and that
the proceedings at which his removal order was issued improperly
deprived him of the opportunity for judicial review. Accordingly,
we need not consider whether the entry of Martinez’s removal order
was fundamentally unfair. See § 1326(d)(3).

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