* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### MAY 25 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 03-4017

v. D. of Utah SAMUEL ESPARZA-AGUILAR,

Defendant-Appellant. (D.C. No. 02-CR-41-1-TC)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Defendant-Appellant Samuel Esparza-Aguilar appeals his conviction for illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. He argues that the district court erred in 1) imposing criminal li ability notwithstanding alleged-2-

defects in the original deportation proceeding, and 2) refusing to depart from the applicable sentencing guidelines. We affirm. Background Samuel Esparza-Aguilar, a Mexican alien, entered th e United States in 1986 and became a lawful permanent resident four years l ater. In 1998, he was convicted in Utah state court for distribution of acontrolled substance. A few weeks later, he received a notice to appear at a re moval hearing before an immigration judge. This notice incorrectly stated that he had not been admitted to the United States, but correctly stated that, havin g been convicted of an aggravated felony, he was subject to removal. At t he hearing, Esparza-Aguilar admitted the allegations requiring his removal, and was deported on April 4, 1998. He did not appeal the removal order. After being apprehended by Utah police on June 10, 2002, Esparza-Aguilar was charged and convicted of reentering the United States as a previously removed alien in violation of 8 U.S.C. § 1326.

Collateral Attack of the 1998 Removal Proceedings In a criminal proceeding under 8 U.S.C. § 1326, an alien “may not challenge the validity of [his] deportation order . . . unless [he] demonstrates that . . . (1) [he had] exhausted any administrative rem edies that may have been-3-

available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of t he opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). We review de novo a due process challenge to the underlying removal proceedings. United States v. Rangel DeAguilar , 308 F.3d 1134, 1137 (10th Cir. 2002). The record shows that Esparza-Aguilar not only fail ed to exhaust his administrative remedies by not contesting his remov al, but waived his right to appeal to the Board of Immigration Appeals. Vol. I Doc. 32 at 4-5. He therefore failed to meet at least one of the requirements for collateral attack of an underlying deportation order, and cannot escape cri minal liability on that basis. Sentencing Guidelines Departure We have “jurisdiction to review a sentencing court’ s refusal to depart from the sentencing guidelines [only] in the very rare c ircumstance that the district court states that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstanc es proffered by the defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). In this case , while the district court refused to exercise its authority to depart from the Guidelines, at no point did it deny that it had the authority to d o so. Vol. II at 8 (Attachment 8). Therefore, we do not have jurisdiction to review th e district court’s decision.-4-

For the foregoing reasons, the decision of the dist rict court is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge