# 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____________ Submitted: April 10, 2013 Filed: July 30, 2013 [Unpublished]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’s 1 order denying his motion to dismiss an indictment charging him with unl awful 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 Se rvice (INS) issued Avila an order to show cause in March 1995, alleging thatAvila was subject to deportation for committing an aggravated felony and two crim es of moral turpitude. In January 1996, Avila and his attorney appeared before an immigration judge (IJ). The IJ struck the aggravated felony a llegation, but found Avila deporta ble 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relief from deportation under former § 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c) (1994) (repealed 1996).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 Ge neral to grant disc retionary waivers of deportation to aliens who me t certain criteria. SeeJohnson v. Holder , 564 F.3d 95, 97 (2d Cir. 2009). In April 1996, Congre ss passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), P ub. 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. 2I.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 accep ted a final deportation order to Mexico.

2 Later in 1996, Congress passed the Ille gal 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 convictedof 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 th e INS indicated that it would seek to reinstate the aggravated felony charge, th ereby 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 Ge neral had vacated the In re Soriano decision. 3 Avila was deported to Mexico in July 1997.
In 2000, Avila reentered the United Stat es by claiming that he was a United States citizen. Avila was indicted in 2002 for unlawful entry afte r deportation and for false representation of United States citizen ship. He pleaded guilty to both charges and was sentenced to 71 months’ imprisonm ent in 2003. He di d not challenge the validity of his underlying deportation order. After finish ing his sentence, Avila was deported in 2008.
Sometime thereafter, Avila reentered th e United States. He was convicted of several crimes in Iowa in 2009 and was sent enced to a term of imprisonment. In 2011, as set forth above, a grand jury charged Av ila 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 revers ed the Attorney General’s decision, holding that “§ 212(c) relief remains availa ble 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 ha d failed to exhaust his administrative remedies; 2) that Avila had not demonstrat ed that he was deprived of his opportunity for judicial review; and 3) that the underlying deportation order was not fundamentally unfair. Avila then pleaded gu ilty 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 erre d in denying his motion to dismiss. “We review the district court’s findings of f act for clear error, but we review de novo whether those facts establish a due proce ss 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 demonstrat es, 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 unfai r 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 n eed 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 c ourt correctly determinedthat he had failed to establish that it was reasonably likel y that the Attorney General would have overlooked his serious crimes and gran ted him discretionary relief.

B. Sentence
Avila argues that his sentence is unreasonable because it is longer than necessary to achieve the goals of sent encing. “We review the substantive reasonableness of a sentence under a deferentia l abuse-of-discretion standard.” United States v. Green , 691 F.3d 960, 966 (8th Cir. 2012). Wh en, 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 presump tion 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 crimin al 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 distri ct court properly cons idered Avila’s earlier sentence, however, in determining that that sentence had notdeterred 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 Davi d 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.

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