     Case: 18-50598      Document: 00515079418         Page: 1    Date Filed: 08/16/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-50598                          August 16, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELIAZAR RINCON-ZUNIGA, also known as Eleazar Rincon Zuniga, also
known as Nene, also known as Eliazar Garcia, also known as Eliazar Zuniga,
also known as Eliazar Rincon, also known as Eliazar Zuniga-Rincon,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:17-CR-852-1


Before REAVLEY, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Eliazar Rincon-Zuniga appeals the district court’s denial of his motion to
dismiss his indictment, which charged him with illegal reentry in violation of
8 U.S.C. § 1326. He contends that the 2010 removal order that served as the
basis for his current § 1326 conviction violated his due process rights and may



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50598

not be used to prove the prior deportation element of his current illegal reentry
offense.
      This court reviews the denial of a motion to dismiss an indictment and
the underlying constitutional claims de novo. United States v. Villanueva-
Diaz, 634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for illegal reentry
under § 1326 may collaterally attack the underlying deportation order. See
United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987).           He must
establish that (1) the prior deportation proceeding was fundamentally unfair;
(2) the hearing effectively eliminated his right to challenge the hearing by
means of judicial review; and (3) the procedural deficiencies actually
prejudiced him. United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002);
see § 1326(d).
      For the first time on appeal, Rincon-Zuniga argues that his 2010
deportation was fundamentally unfair because he was not given “a reasonable
opportunity” to contest the charges that he was an aggravated felon.
Specifically, he contends that the 2010 “Notice of Intent to Issue a Final
Administrative Removal Order,” wherein he waived many of his rights,
“instructed him that the possible challenges [to his 2010 removal] were limited
to factual disputes” and that he could not challenge his legal classification as
an aggravated felon. Because Rincon-Zuniga raises this argument for the first
time on appeal, our review is for plain error. See United States v. Cordova-
Soto, 804 F.3d 714, 719, 722 (5th Cir. 2015). To prevail on plain error review,
Rincon-Zuniga must identify (1) a forfeited error, (2) that is clear or obvious,
rather than subject to reasonable dispute, and (3) that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he satisfies
the first three requirements, this court may, in its discretion, remedy the error




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                                 No. 18-50598

if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings. See id.
      Rincon-Zuniga fails to point to any evidence tending to show that he was
somehow misled by the 2010 notice when he signed it and waived many of his
rights to challenge his removal. Moreover, his current interpretation of the
2010 notice—that it “instructed him” that his ability to challenge his removal
was limited to certain discrete factual issues—is subject to reasonable dispute.
Accordingly, Rincon-Zuniga fails to establish a clear or obvious error, see
Puckett, 556 U.S. at 135, and therefore fails to show that his 2010 removal
proceeding was fundamentally unfair, see Lopez-Ortiz, 313 F.3d at 229.
Because he fails to establish the fundamental-unfairness prong of the three-
part test set forth in Lopez-Ortiz, we do not consider his arguments concerning
the other prongs. See United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th
Cir. 2003).
      AFFIRMED.




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