UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4227

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEVY GUILLERMO RAMIREZ MEJIA, a/k/a Levy Ramirez, a/k/a 

Ramirez Levy, a/k/a Levy Guillermo Ramirez-Mejia, a/k/a Levy 

Guillermo Mejia Ramirez, a/k/a Levy Guillermo Ramirez,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District Judge. 

(1:15-cr-00361-LO-1)

Submitted: November 15, 2016 Decided: December 15, 2016 

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, 

Appellate Attorney, Elizabeth Mullin, Assistant Federal Public 

Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, 

United States Attorney, David Peters, Special Assistant United 

States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Levy Guillermo Ramirez Mejia (Ramirez) appeals his conviction 

for unlawful reentry after removal following a conviction for a

felony, in violation of 8 U.S.C. § 1326(a), (b)(1) (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 following an order of 

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 seek relief against the order; (2) the deportation 

proceedings at which the order was issued improperly deprived [him] 

of the opportunity for judicial review; and (3) the entry of the 

order was fundamentally unfair.” 8 U.S.C. § 1326(d); see United 

States v. Lopez-Collazo, 824 F.3d 453, 458 (4th Cir. 2016), 

petition for cert. filed, __ U.S.L.W. __ (U.S. Sept. 26, 2016) 

(No. 16-6251). Because these conditions are listed in the 

conjunctive, a defendant must show all three in order to prevail. 

Lopez-Collazo, 824 F.3d at 458. “However, if the defendant 

satisfies all three requirements, the illegal reentry charge must 

be dismissed as a matter of law.” United States v. El Shami, 434 
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F.3d 659, 663 (4th Cir. 2005). We conduct a de novo review of the 

district court’s denial of a motion to dismiss an indictment under 

8 U.S.C. § 1326(d). Id.

On appeal, Ramirez first claims that he is not barred by the 

exhaustion requirement set forth in 8 U.S.C. § 1326(d)(1) because 

exhaustion in this case would have been futile. “Statutory 

exhaustion requirements such as that set forth in § 1326(d) are 

mandatory, and courts are not free to dispense with them.” United 

States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002) (internal 

quotation marks omitted). “The qualification to this rule is that 

futility excuses a litigant from a statutory exhaustion 

requirement ‘where the relevant administrative procedure lacks 

authority to provide any relief or to take action whatsoever in 

response to a complaint.’” United States v. Copeland, 376 F.3d 

61, 67 (2d Cir. 2004) (quoting Booth v. Churner, 532 U.S. 731, 736 

(2001)). 

After conducting a de novo review of Ramirez’s claims, we 

agree with the district court that Ramirez cannot demonstrate that 

administrative remedies were unavailable to him on account of 

futility. See United States v. Ramirez Mejia, No. 1:15-cr-00361-

LO-1 (E.D. Va. Feb. 23, 2016). Accordingly, we conclude that 

Ramirez, who did not appeal the removal order to the Board of 

Immigration Appeals, failed to exhaust available administrative 
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remedies to challenge his removal order and is thus barred from 

collaterally attacking the order under 8 U.S.C. § 1326(d).* 

We therefore uphold the district court’s denial of Ramirez’s 

motion to dismiss the indictment and affirm the criminal 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

 * Because Ramirez fails to demonstrate that he exhausted any 

available administrative remedies to seek relief against the 

removal order, we need not consider whether his removal proceedings 

improperly deprived him of the opportunity for judicial review or 

whether the entry of his removal order was fundamentally unfair. 

See § 1326(d)(2), (3).