FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 29, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-14082

Non-Argument Calendar

________________________

D. C. Docket No. 03-00106-CR-1-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

EDUARDO CARLOS VALENTIN MORALES, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(April 29, 2005)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Eduardo Carlos Valentin Morales appeals his conviction and sentence, under
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8 U.S.C. section 1326(a) and (b)(2), for illegally reentering the United States after

having been deported. Valentin-Morales contends that the district court erred

when it found that the underlying deportation proceeding did not violate due

process. Valentin-Morales also contends that the 16-point enhancement of his

sentence violated the Sixth Amendment. We affirm.

An alien may not challenge the validity of a deportation order that forms the

basis of a criminal prosecution under 8 U.S.C. section 1326(a)(1) or (b) unless the

alien can establish 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.” 8 U.S.C. § 1326(d). Valentin-Morales contends that his deportation

hearing violated due process, because, as the United States concedes, the

Immigration Judge (IJ) erroneously informed Valentin-Morales that discretionary

relief from deportation was not available.

We need not resolve the difficult question of whether the error of the IJ

violated due process, because we conclude that Valentin-Morales failed to exhaust

the administrative remedies available to him. The record shows that the IJ, after

ruling that Valentin-Morales was not eligible for any form of relief, asked
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Valentin-Morales, “Do you accept the court’s decision, or do you wish to appeal

that decision, sir?” Valentin-Morales replied, “Accept.” Nothing in the record

indicates that Valentin-Morales’s waiver of his right to appeal to the Board of

Immigration Appeals (BIA) was not knowing and intelligent. Although ValentinMorales contends that the exhaustion requirement did not apply because the IJ

erroneously informed Valentin-Morales that discretionary relief was unavailable,

we have previously rejected that argument in the context of a habeas corpus

challenge to a deportation order. See Sundar v. I.N.S., 328 F.3d 1320, 1325-26

(11th Cir. 2003). The reasoning of Sundar applies equally here. In addition, if

Valentin-Morales “wanted to re-enter the United States and to do so legally,

nothing precluded him from seeking a rescission of his deportation order even after

his removal from the United States.” United States v. Zelaya, 293 F.3d 1294, 1297

(11th Cir. 2002). Valentin-Morales, therefore, failed to exhaust available

administrative remedies. See id.

We further conclude that Valentin-Morales failed to show that he was denied

the opportunity for judicial review. The IJ told Valentin-Morales of his right to

appeal, and Valentin-Morales rejected the opportunity to appeal not only to the

BIA but to this Court as well. Valentin-Morales, therefore, failed to show that the

deportation proceedings improperly deprived him of the opportunity for judicial
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review. See 8 U.S.C. § 1326(d)(2).

Valentin-Morales contends that the sentencing enhancement he received

violated the Sixth Amendment under Blakely v. Washington, 542 U.S. —, 124 S.

Ct. 2531 (2004), the reasoning of which the Supreme Court extended to the federal

sentencing guidelines in United States v. Booker, 543 U.S. —, 125 S. Ct. 738

(2005). In his plea agreement, Valentin-Morales waived the right to appeal his

sentence except in three circumstances: “(1) an upward departure from the

otherwise applicable sentencing guideline range; and/or (2) the District Court’s

October 31, 2003 Order denying the defendant’s Motions To Dismiss; and/or (3) a

finding that the defendant’s criminal history falls in Category VI.” None of those

exceptions applies here. 

We have consistently held that appeal waivers are valid if knowingly and

voluntarily entered. United States v. Rubbo, 396 F.3d 1330, 1331 (11th Cir. 2005). 

Valentin-Morales does not argue that his appeal waiver was not knowing or

voluntary. Because the right to appeal a sentence based on Booker “can be waived

in a plea agreement” and “[b]road waiver language covers those grounds of

appeal,” id. at 1335, Valentin-Morales waived his right to appeal his sentence on

Booker grounds.

AFFIRMED.