United States v. Garcia-Saldivar ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-20319
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL GARCIA-SALDIVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-637-ALL
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Joel Garcia-Saldivar appeals his conviction of being found
in the United States after having been previously removed
following an aggravated-felony conviction. He argues (1) that
his prior removal was invalid, and the district court’s denial of
his motion to dismiss the indictment was error and (2) that 8
U.S.C. § 1326(b)’s sentencing provisions are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
*
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that this opinion should not be published and is not precedent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. 03-20319
-2-
acknowledges that his arguments are foreclosed, and he seeks to
preserve them for further review.
Garcia-Saldivar’s argument that the failure to inform him of
his eligibility to apply for relief under 8 U.S.C. § 1182(c) (INA
§ 212(c)) rendered the prior removal proceedings fundamentally
unfair is without merit. United States v. Lopez-Ortiz, 313 F.3d
225 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003). Also
without merit is his argument that 8 U.S.C. § 1326(b)(2) is
unconstitutional in light of Apprendi. See Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.