United States v. Canales-Siguenza ( 2006 )


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  •                                                           United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                     July 27, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-20492
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CARLOS ERNESTO CANALES-SIGUENZA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:04-CR-330-ALL
    --------------------
    Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Carlos    Ernesto    Canales-Siguenza   (Canales)   challenges     his
    conviction for illegal reentry, in violation of 
    8 U.S.C. § 1326
    ,
    and resulting 33-month sentence.           He first contends that the
    district court erred in denying his motion to suppress and to
    dismiss the indictment on the ground that his removal proceedings
    in June 2000 were fundamentally unfair.
    The district court’s denial of the suppression motion is
    reviewed de novo.        See United States v. Lopez-Vasquez, 227 F.3d
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 05-20492
    -2-
    476, 481-82 (5th Cir. 2000).   Because Canales failed to exhaust his
    remedies and has not shown that he was deprived of judicial review
    as to the underlying removal order, we find no error in the
    district court’s ruling.     See United States v. Mendoza-Mata, 
    322 F.3d 829
    , 832 (5th Cir. 2003) (internal quotations and citations
    omitted); United States v. Benitez-Villafuerte, 
    186 F.3d 651
    , 658
    & n.8 (5th Cir. 1999); 
    8 U.S.C. § 1326
    (d); see also United States
    v. Lopez-Ortiz, 
    313 F.3d 225
    , 230 (5th Cir. 2002).
    Canales devotes his argument regarding exhaustion and judicial
    review to his 2000 removal.    He does not explain why he failed to
    challenge the later, separate, July 2003 removal order, either
    administratively or judicially.      See United States v. Nava-Perez,
    
    242 F.3d 277
    , 279 (5th Cir. 2001).         To the extent that Canales
    argues that his failure to exhaust should be excused because he was
    never informed that he was eligible for relief under 8 U.S.C §
    1159(c), his argument fails because he was not in fact eligible for
    such relief given that he had not applied for (but had actually
    withdrawn his application for) adjustment of status.      See 
    8 U.S.C. §§ 1128
    , 1159(a)(2) and (c).
    Canales’ argument that the sentencing provisions in § 1326 are
    unconstitutional   is   foreclosed   by   Almendarez-Torres   v.   United
    States, 
    523 U.S. 224
    , 235 (1998).     Although Canales contends that
    Almendarez-Torres was incorrectly decided and that a majority of
    the Supreme Court would overrule Almendarez-Torres in light of
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), we have repeatedly
    No. 05-20492
    -3-
    rejected such arguments on the basis that Almendarez-Torres remains
    binding.   See United States v. Garza-Lopez, 
    410 F.3d 268
    , 276 (5th
    Cir.), cert. denied, 
    126 S. Ct. 298
     (2005).          Canales properly
    concedes   that   his   argument   is   foreclosed     in   light   of
    Almendarez-Torres and circuit precedent, but he raises it here to
    preserve it for further review.
    AFFIRMED.