United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-3111

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Ruben Perales Avila, also known as Ruben Parales Avila

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the Southern District of Iowa - Davenport

____________

 Submitted: April 10, 2013

 Filed: July 30, 2013

[Unpublished] 

____________

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

____________

PER CURIAM.

Ruben Avila appeals from the district court’s1

 order denying his motion to

dismiss an indictment charging him with unlawful entry after deportation in violation

of 8 U.S.C. §§ 1326(a) and (b)(2). He also appeals his sentence. We affirm. 

1

The Honorable James E. Gritzner, Chief Judge, United States District Court

for the Southern District of Iowa. 
I. Background 

Avila, a native of Mexico, entered the United States in 1973 at age three. 

Thereafter, he was convicted of several criminal offenses in Iowa, including a 1989

conviction for fourth-degree criminal mischief and fourth-degree theft; a 1991

conviction for indecent acts with a child; a 1992 conviction for third-degree sexual

abuse; and a 1993 conviction for third-degree harassment. 

The Immigration and Naturalization Service (INS) issued Avila an order to

show cause in March 1995, alleging that Avila was subject to deportation for

committing an aggravated felony and two crimes of moral turpitude. In January 1996,

Avila and his attorney appeared before an immigration judge (IJ). The IJ struck the

aggravated felony allegation, but found Avila deportable for having been convicted

of two crimes of moral turpitude. 

Thereafter, Avila sought relief from deportation under former § 212(c) of the

Immigration and Naturalization Act, 8 U.S.C. § 1182(c) (1994) (repealed 1996). 

Former § 212(c) allowed the Attorney General to grant discretionary waivers of

deportation to aliens who met certain criteria. See Johnson v. Holder, 564 F.3d 95,

97 (2d Cir. 2009). In April 1996, Congress passed the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. The

AEDPA amended § 212(c) to preclude discretionary relief for aliens convicted of a

broad set of crimes, including aggravated felonies.2

 I.N.S. v. St. Cyr, 533 U.S. 289,

297 (2001). Avila appeared with counsel for a May 1996 hearing, during which he

withdrew his § 212(c) application and accepted a final deportation order to Mexico.

2

Later in 1996, Congress passed the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009. IIRIRA

repealed § 212(c) altogether and “replaced it with a new section that gives the

Attorney General the authority to cancel removal for a narrow class of inadmissible

or deportable aliens[.]” I.N.S. v. St. Cyr, 533 U.S. 289, 297 (2001). This section also

precludes relief for any alien convicted of an aggravated felony. Id. 

-2-
In August 1996, Avila filed a motion to reinstate his § 212(c) application. He

asserted that he had withdrawn his previous application because the IJ had opined that

the AEDPA’s preclusion of § 212(c) relief for aliens convicted of an aggravated

felony applied immediately and because the INS indicated that it would seek to

reinstate the aggravated felony charge, thereby leaving Avila with “no avenue upon

which to pursue relief.” Avila argued that in light of the BIA’s decision that the

AEDPA did not apply to § 212 applications pending on the AEDPA’s effective date,

In re Soriano, 21 I. & N. Dec. 516 (BIA 1996), he should be allowed to reopen his

application. Avila withdrew his motion to reinstate his application after the INS filed

an opposition noting that the Attorney General had vacated the In re Soriano decision.3

Avila was deported to Mexico in July 1997.

In 2000, Avila reentered the United States by claiming that he was a United

States citizen. Avila was indicted in 2002 for unlawful entry after deportation and for

false representation of United States citizenship. He pleaded guilty to both charges

and was sentenced to 71 months’ imprisonment in 2003. He did not challenge the

validity of his underlying deportation order. After finishing his sentence, Avila was

deported in 2008. 

Sometime thereafter, Avila reentered the United States. He was convicted of

several crimes in Iowa in 2009 and was sentenced to a term of imprisonment. In 2011,

as set forth above, a grand jury charged Avila with unlawful entry after deportation. 

Avila filed a motion to dismiss the indictment, arguing that the underlying 1996

deportation order was invalid under 8 U.S.C. § 1326(d) and that the government was

3

The Supreme Court eventually reversed the Attorney General’s decision,

holding that “§ 212(c) relief remains available for aliens . . . whose convictions were

obtained through plea agreements and who, notwithstanding those convictions, would

have been eligible for § 212(c) relief at the time of their plea under the law then in

effect.” St. Cyr, 533 U.S. at 326. 

-3-
thus unable to prove an essential element of the crime. The district court denied

Avila’s motion, finding: 1) that Avila had failed to exhaust his administrative

remedies; 2) that Avila had not demonstrated that he was deprived of his opportunity

for judicial review; and 3) that the underlying deportation order was not

fundamentally unfair. Avila then pleaded guilty but preserved the right to appeal the

denial of his motion to dismiss. The district court calculated a United States

Sentencing Guidelines (Guidelines) range of 77 to 96 months’ imprisonment. After

considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Avila to 96

months’ imprisonment. 

II. Discussion

A. Denial of Motion to Dismiss

Avila argues that the district court erred in denying his motion to dismiss. “We

review the district court’s findings of fact for clear error, but we review de novo

whether those facts establish a due process defect.” United States v. Rodriguez, 420

F.3d 831, 833 (8th Cir. 2005). An alien may collaterally attack the validity of his

underlying deportation order if he demonstrates, among other things, that “the entry

of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). “An error cannot

render the proceedings fundamentally unfair unless it resulted in actual prejudice.” 

Rodriguez, 420 F.3d at 834. 

Avila has failed to establish the requisite prejudice. “Prejudice in this context

means ‘a reasonable likelihood that but for the errors complained of the defendant

would not have been deported.’” United States v. Mendez-Morales, 384 F.3d 927,

931-32 (8th Cir. 2004) (quoting United States v. Perez-Ponce, 62 F.3d 1120, 1122

(8th Cir. 1995)). At the time of the 1996 deportation order, Avila had a significant

criminal history, including convictions for sexually abusing two thirteen-year-old

boys. Given this history, Avila would need to demonstrate “unusual or outstanding

-4-
equities in order to receive relief” under § 212(c). United States v. Gonzalez-Valerio,

342 F.3d 1051, 1057 (9th Cir. 2003). Although Avila presented some evidence to

support his claim of prejudice, the district court correctly determined that he had failed

to establish that it was reasonably likely that the Attorney General would have

overlooked his serious crimes and granted him discretionary relief. 

B. Sentence

Avila argues that his sentence is unreasonable because it is longer than

necessary to achieve the goals of sentencing. “We review the substantive

reasonableness of a sentence under a deferential abuse-of-discretion standard.” United

States v. Green, 691 F.3d 960, 966 (8th Cir. 2012). When, as here, the district court

imposes a sentence within the Guidelines range, “we presume it is substantively

reasonable.” United States v. Hoffman, 707 F.3d 929, 936 (8th Cir. 2013). 

Avila has failed to overcome the presumption of reasonableness afforded to his

within-Guidelines sentence. He argues that the district court should have imposed a

lesser sentence because he has spent most of his life in the United States and his

family resides here. The district court considered Avila’s cultural assimilation, but

found that it was outweighed by Avila’s criminal conduct. Avila also contends that

the district court gave undue weight to his 2003 top-of-the-Guidelines sentence for

unlawful entry after deportation. The district court properly considered Avila’s earlier

sentence, however, in determining that that sentence had not deterred him from

reentering illegally and that a sentence at the top of the Guidelines range was thus

necessary to deter future criminal conduct. See United States v. David, 682 F.3d

1074, 1077-78 (8th Cir. 2012) (“[T]he district court did not abuse its discretion in

considering David’s previous sentence as a ‘benchmark’ for finding the punishment

that is apparently necessary to deter David from repeating his criminal behavior.”). 

We find no abuse of discretion in the district court’s imposition of sentence. 

-5-
III. Conclusion 

The judgment and sentence are affirmed. 

_______________________________________

-6-