UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6194

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v. LEXY LEONEL HERRERA-PAGOADA, a/k/a Lexy Leonel Herrera, a/k/a Juan Villa Hermosa,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:15−cr−00104−H−1)

Argued: May 4, 2021 Decided: September 16, 2021

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge King and Judge Floyd joined.

ARGUED: Nardine Mary Guirguis, GUIRGUIS LAW, PA, Raleigh, North Carolina, for Appellant. Dennis Duffy, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. DIAZ, Circuit Judge:

Lexy Leonel Herrera-Pagoada, a native, and citizen of Honduras, appeals the dismissal of his 28 U.S.C. § 2255 habeas petition challenging his sentence for felony illegal reentry of an alien who has previously been removed, in violation of 8 U.S.C. § 1326(a) and (b). He claims that his trial counsel was ineffective when counsel failed to recognize that Herrera-Pagoada was innocent of illegal reentry because the underlying removal order was invalid.

But the district court found that Herrera-Pagoada couldn’t collaterally attack (and thereby invalidate) that order because he hadn’t satisfied 8 U.S.C. § 1326(d)’s three requirements for doing so. We agree that, at a minimum, Herrera-Pagoada failed to satisfy the third condition: that “the entry of the removal order was fundamentally unfair.” Id. at § 1326(d)(3). Accordingly, we affirm.

I.

This case turns on the application of 8 U.S.C. § 1326. Under subsections (a) and (b) of that provision, “any alien who has been denied admission, excluded, deported, or removed . . . and thereafter enters, attempts to enter, or is at any time found in, the United States” is subject to various criminal penalties, unless he qualifies for certain exceptions not relevant here.

Subsection (d), however, permits an alien to collaterally attack a removal order in a criminal proceeding under § 1326 if the alien proves that: (1) he “exhausted any administrative remedies that may have been available to seek relief against the order”; (2)

2 “the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review”; and (3) “the entry of the order was fundamentally unfair.” Id. at § 1326(d). “These requirements are listed in the conjunctive, so a defendant must satisfy all three in order to prevail.” United States v. Wilson, 316 F.3d 506, 510 n.1 (4th Cir. 2003), overruled on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006).

A.

Herrera-Pagoada has been arrested after illegally entering the United States not once, not twice, but six times. The first time, he was arrested in North Carolina while in possession of between two hundred and four hundred grams of cocaine. He pleaded guilty to trafficking in cocaine by possession and was released on bond. But he failed to appear for sentencing and committed several misdemeanors in North Carolina before authorities sought to remove him.

At his removal hearing in 2010, Herrera-Pagoada admitted that he had illegally entered the United States. The immigration judge (“IJ”) informed Herrera-Pagoada that he might be eligible for “non-[lawful permanent resident (“LPR”)] cancellation,” a form of discretionary relief through which certain inadmissible