US v. Levy Ramirez Mejia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00361-LO-1. Copies to all parties and the district court/agency [999987297]. [16-4227]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.”
States

v.

Lopez-Collazo,

824

8 U.S.C. § 1326(d); see United

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.”
2

United States v. El Shami, 434

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F.3d 659, 663 (4th Cir. 2005).

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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).
futility

excuses

a

“The qualification to this rule is that

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).
4