F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               MAY 25 2004
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 03-4017
          v.                                                 D. of Utah
 SAMUEL ESPARZA-AGUILAR,                         (D.C. No. 02-CR-41-1-TC)

               Defendant-Appellant.




                            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 liability notwithstanding alleged




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.

      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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 the United States in 1986

and became a lawful permanent resident four years later. In 1998, he was

convicted in Utah state court for distribution of a controlled substance. A few

weeks later, he received a notice to appear at a removal hearing before an

immigration judge. This notice incorrectly stated that he had not been admitted to

the United States, but correctly stated that, having been convicted of an

aggravated felony, he was subject to removal. At the 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 remedies that may have been




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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). We review de novo a due process challenge to the underlying removal

proceedings. United States v. Rangel DeAguilar      , 

, 1137 (10th Cir.

2002).

         The record shows that Esparza-Aguilar not only failed to exhaust his

administrative remedies by not contesting his removal, 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 criminal 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 circumstance that the district

court states that it does not have any authority to depart from the sentencing

guideline range for the entire class of circumstances proffered by the defendant.”

United States v. Castillo , 

, 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 do so. Vol. II at 8 (Attachment 8).

Therefore, we do not have jurisdiction to review the district court’s decision.


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For the foregoing reasons, the decision of the district court is AFFIRMED.

                                       Entered for the Court

                                       Timothy M. Tymkovich
                                       Circuit Judge




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