                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4609


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSE   SANTIAGO   HERNANDEZ-LOPEZ,   a/k/a   Jose   Santiago
Hernandez, a/k/a Santiago Hernandez, a/k/a Jose Santiago,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:14-cr-00016-CMH-1)


Submitted:   May 19, 2015                     Decided:   May 26, 2015


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Eric
Mothander, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Jose       Santiago    Hernandez-Lopez              appeals       his    conviction       for

unlawful         reentry    after       removal         by    an     aggravated       felon,     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       after    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    challenge       the     order         of     removal;       (2)   he    was

effectively        deprived       of    his    right         to    judicial     review    of    the

removal          order;     and        (3)      the          removal        proceedings        were

fundamentally unfair.                  8 U.S.C. § 1326(d) (2012); see United

States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v.

El Shami, 434 F.3d 659, 663 (4th Cir. 2005).                                 A defendant must

satisfy all three of the above requirements to prevail.                                     United

States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003), overruled

on   other       grounds    by    Lopez       v.       Gonzales,      549    U.S.    47   (2006).

“However, if the defendant satisfies all three requirements, the

illegal reentry charge must be dismissed as a matter of law.”

El Shami, 434 F.3d at 663.                   This court conducts a de novo review

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of    the   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).             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.

The     Notice      to      Appear     and       hearing       notice        served       on

Hernandez-Lopez indicate that he was provided with a list of pro

bono legal counsel, see 8 C.F.R. § 1240.10(a)(2), (3) (2014),

and   his   order     of    removal    indicates        that      he   waived       appeal.

Hernandez-Lopez contends that the record does not contain a copy

of the offered services and that thus it is not clear that such

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list was actually provided to him.                     Such error, he asserts,

excuses    his    failure     to    exhaust     and    renders          his   proceedings

fundamentally unfair.              Upon review, we find no error in the

district       court’s    conclusion     that        Hernandez-Lopez          failed   to

exhaust       administrative       remedies     available          to    challenge     his

removal order and is thus barred from collaterally attacking the

order   under     § 1326(d).         Further,    Hernandez-Lopez’s             assertion

that    his     removal    proceedings        were     fundamentally          unfair    is

without merit.

       We accordingly affirm the district court’s 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




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