* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 28 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANCISCO HERRERA-AVALOS, also known as Francisco Herrera, and Francisco Avalos-Herrera, Defendant - Appellant. No. 02-1231 D.C. No. 01-CR-334-WM (D. Colorado)

ORDER AND JUDGMENT *

Before EBEL , LUCERO and HARTZ , Circuit Judges.

On September 26, 2001, Defendant Francisco Herrera- Avalos (“Defendant”), a Mexican citizen, was charged with one count of unlawful reentry by a previously deported alien previously convictedof an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). (ROA I atDoc. 13.) On October 4,- 2 -

2001, he moved to dismiss the indictment by challen ging the May 2000 deportation on which it was based as fundamentally unfair and violative of his due process rights. (ROA Supp. II at Doc. 19.) Af ter a hearing on the merits, the district court rejected this challenge. (ROA II at30-31.) Defendant was convicted by a jury on February 12, 2 002. (ROA I at 64.) At sentencing on May 14, 2002, he objected to the P resentence Report’s (PSR’s) recommendation against a downward adjustment for ac ceptance of responsibility. Defendant argued that he should receive the adjustm ent because he had admitted his factual guilt and proceeded to trial only to ch allenge a legal issue—namely, that the indictment wrongly alleged that he had bee n “deported” in May 2000, when in fact he had been “excluded.” (ROA V at 42- 43.) The district court, which had previously characterized Defendant’s argu ment in this respect as “essentially sophistry” and “play[ing] games with l anguage,” denied Defendant’s request. He was sentenced to 100 months’ imprisonm ent, the bottom of the applicable guideline range, and three years of supe rvised release. (ROA IV at 269-70; ROA V at 64.) On appeal, Defendant makes two arguments. First, h e argues that the district court should have granted his motion to di smiss the indictment, because the May 2000 deportation order on which it was base d was obtained in violation of his due process rights. (Aplt. Br. at 7.) Seco nd, he argues that the district1 Defendant, who is represented by counsel on appeal, recently filed a pro se

motion to supplement the record with a short brief of his own. We GRANT the motion while noting that Defendant simply repeats a n argument already made by counsel; as such, we do not separately address the argument he made therein. - 3 - court erred in denying him a downward adjustment fo r acceptance of responsibility, as he admitted all of the applicabl e facts and went to trial to challenge only the government’s application of the law to those facts. For the reasons stated below, we take jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and AFFIRM Defendant’s conviction and sentence. 1
We review de novo a district court’s decision not t o dismiss an indictment under 8 U.S.C. § 1326 due to alleged violations of due process in the underlying immigration proceeding. United States v. Wittgenst ein , 163 F.3d 1164, 1170 (10th Cir. 1998). “A defendant prosecuted under § 1326 must show in a collateral challenge to a prior deportation hearing that the d eportation hearing was fundamentally unfair, and that it deprived him of adirect appeal.” United States v. Arevalo-Tavares , 210 F.3d 1198, 1200 (10th Cir. 2000). The Immigr ation Judge who presided over Defendant’s May 2000 deport ation proceeding informed Defendant of his right to counsel, which he waived, and of his right to appeal the Immigration Judge’s deportation order, which he als o waived. (ROA Supp. II at Doc. 30, pp. 1, 8.) Defendant nevertheless maintai ns that he was “effectively deprived... of his right to appeal” because the jud ge failed to inform him of three- 4 -

things: 1) that if he decided to appeal, he could s eek bail while the appeal was pending; 2) that he could seek counsel to assist hi m in his appeal; and 3) that he could seek a waiver of deportation even if he decid ed to appeal the judge’s decision. (Aplt. Br. at 10-11.) Defendant argues that because he was not informed of these things, his waiver of his right t o appeal was not knowing and intelligent. (Id. at 11.) Defendant’s argument fails. The Immigration Judge told Defendant what he was required to tell him: that Defendant had the right to counsel during the proceeding and that he could appeal the decision ag ainst him. (ROA Supp. II at 1, 8.) Nothing in the applicable statutes or regul ations suggests that the judge should also have informed Defendant of the implicat ions of exercising or not exercising those rights. Nor has Defendant cited acase suggesting otherwise. Moreover, to succeed in this collateral attack, Def endant must prove that the judge’s failure to mention these things resulted in a “fundamentally unfair” proceeding. Arevalo-Tavares , 210 F.3d at 1200. Having reviewed the transcript of Defendant’s deportation hearing, we conclude that the Immigration Judge carefully and patiently advised Defendant of his ri ghts; accordingly, we find that Defendant’s waiver of those rights was knowing and intelligent and that the2 Even were we to find that the Immigration Judge err ed, Defendant would

still not prevail on this claim because he has fail ed to prove that he was prejudiced by the judge’s actions. See United States v. Meraz-Valeta , 26 F.3d 992, 998 (10th Cir. 1994). Given Defendant’s long criminal history and multiple convictions in this country, coupled with his illeg al reentry after deportation, it is highly unlikely that he would have received a waive r of deportation from the Attorney General. - 5 - proceeding was not “fundamentally unfair.” We thus affirm the district court’s denial of Defendant’s motion to dismiss the indictm ent. 2 Defendant’s second argument on appeal is that the d istrict court improperly denied his request for a downward departure based o n acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. We r eview a district court’s denial of this reduction for clear error. United States v . Janusz , 135 F.3d 1319, 1325 (10th Cir. 1998). Application Note 2 to § 3E1.1 states: This adjustment is not intended to apply to a defen dant who puts the government to its burden of proof at trial by denyi ng the essential factual elements of guilt, is convicted, and only then admi ts guilt and expresses remorse. Conviction by trial, however, does not au tomatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his const itutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt(e.g., to make a constitutional challenge to a statute or a challeng e to the applicability of a statute to his conduct). In each such instance, ho wever, a determination that a defendant has accepted responsibility will b e based primarily upon pre-trial statements and conduct. U.S.S.G. § 3E1.1 comment. (n.2).- 6 -

Defendant argues that he should have received the d ownward adjustment for two reasons: 1) he confessed after his arrest t o having reentered the country illegally, and 2) at trial, he challenged only the legal sufficiency of the indictment, which charged him with illegal reentry after having been previously “deported,” when in fact he had reentered after hav ing previously been “excluded.” (Aplt. Br. at 15-16.) The Government counters that because Defendant put the prosecution to its burden of proo f—by, for example, not stipulating to any elements of the charged offense—Defendant is not entitled to the downward departure. (Aple. Br. at 10.) Having carefully reviewed the trial transcript, we conclude that the Government is correct. Although Defendant did chal lenge the legal sufficiency of his indictment, he also forced the Government to pr ove every element of the charged offense, which undermines his claim for acc eptance of responsibility.
See United States v. Portillo-Valenzuela , 20 F.3d 393, 394-95 (10th Cir. 1994). We cannot conclude that the district court clearly erred in refusing to grant the departure. For the foregoing reasons, we AFFIRM Defendant’s co nviction and

sentence. ENTERED FOR THE COURT David M. Ebel Circuit Judge