IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50501

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS IBARRA-LEYVA, also known as Carlos Ibarra, also known as Juan 

Carlos Leyva-Gonzales, also known as Carlos Leyva, also known as Carlos 

Leyva-Ibarra,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:18-CR-74-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Carlos Ibarra-Leyva appeals the district court’s denial of his motion to 

dismiss the indictment charging him with illegal reentry in violation of 8 

U.S.C. § 1326. He contends his prior removal order that served as the basis 

for his current § 1326 conviction violated his due process rights because it was 

based on his prior conviction for Texas manslaughter which, after the Supreme 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2020

Lyle W. Cayce

Clerk

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No. 19-50501

2

Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), is not a “crime 

of violence” under 18 U.S.C. § 16(b), and therefore not an “aggravated felony”

under 8 U.S.C. § 1101(a)(43). 

This court reviews the denial of a motion to dismiss an indictment and 

the underlying constitutional claims de novo. United States v. VillanuevaDiaz, 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). 

Ibarra-Leyva argues that his removal proceedings were fundamentally 

unfair because the immigration judge and Board of Immigration Appeals 

classified his Texas manslaughter conviction as a “crime of violence” under 

§ 16(b), which classification was erroneous under the Supreme Court’s 

subsequent holding in Dimaya. The Government contends that Ibarra-Leyva 

waived his ability to appeal this issue because his conditional plea agreement 

only excepted from his appeal waiver a challenge to the district court’s denial 

of his motion to dismiss, and Ibarra-Leyva did not raise this issue in his motion. 

We need not decide whether Ibarra-Leyva waived this issue and affirm the 

district court’s denial of his motion to dismiss and judgment for the reasons 

that follow. See United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995).

With respect to Ibarra-Leyva’s Dimaya-based arguments, he fails to 

show that his removal proceedings were fundamentally unfair inasmuch as the 

proceedings did not violate his procedural due process rights. See Lopez-Ortiz, 

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313 F.3d at 229-30. 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).

Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Ibarra-Leyva 

additionally contends that the prior removal order upon which his indictment 

was based was void for lack of subject matter jurisdiction due to the failure of 

the notice to appear that commenced his removal proceedings to list the date 

and time of his removal hearing. He correctly concedes that this issue is 

foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), 

cert. denied, 2020 WL 2515686 (U.S. May 18, 2020), and Pierre-Paul v. Barr, 

930 F.3d 684 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 

2020). 

AFFIRMED.

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