United States v. Negrete-Mendoza ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2004
____________________ Charles R. Fulbruge III
Clerk
No. 04-50081
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCELINO RAMON NEGRETE-MENDOZA,
Defendant-Appellant.
-------------------------
Appeal From the United States District Court
for the Western District of Texas
(03-CR-54)
-------------------------
Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
Marcelino Ramon Negrete-Mendoza (“Negrete”) appeals his
conviction and 71-month sentence for illegal reentry following
deportation subsequent to an aggravated felony conviction. The
district court determined that Negrete had failed to establish that
his removal proceeding was fundamentally unfair and therefore
denied Negrete’s collateral challenge to his removal.
*
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this opinion should not be published and is not precedent except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. 04-50081
-2-
An alien seeking to collaterally challenge an order of removal
in an 8 U.S.C. § 1326 prosecution must establish (1) that the
removal proceeding was “‘fundamentally unfair’”; (2) that the
proceeding “effectively eliminated” his right to challenge the
proceeding by means of judicial review; and (3) that “procedural
deficiencies” actually prejudiced him. United States v. Mendoza-
Mata, 322 F.3d 829, 832 (5th Cir. 2003) (citation omitted); see
also 8 U.S.C. § 1326(d). If the alien fails to establish one prong
of the test, the others need not be considered. See Mendoza-Mata,
322 F.3d at 832.
Negrete argues that his removal proceeding was fundamentally
unfair because he was denied the opportunity to apply for relief
under § 212(c) of the Immigration and Nationality Act and because
the removal order had an impermissible retroactive effect. He also
contends that he satisfies the remainder of the requirements to
collaterally challenge his removal.
The record reveals that Negrete was represented by counsel at
his removal hearing before an immigration judge and that counsel
was of the opinion that Negrete was not eligible for relief under
§ 212(c). The record also reveals that Negrete argued that he was
eligible for relief under § 212(c) before the Board of Immigration
Appeals. Negrete has failed to show that his removal proceedings
were fundamentally unfair. See United States v. Lopez-Ortiz, 313
F.3d 225, 230-31 (5th Cir. 2002).
No. 04-50081
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Negrete also argues that because his indictment did not allege
the fact of his prior aggravated felony conviction as a separate
element of the offense, the indictment charged him only with an
offense under 8 U.S.C. § 1326(a) rather than 8 U.S.C. § 1326(b).
He contends that his sentence should be limited to the maximum
authorized under 8 U.S.C. § 1326(a). Negrete acknowledges that
his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but wishes to preserve the issue for Supreme
Court review in light of Apprendi v. New Jersey, 530 U.S. 466(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). Thus, we must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). Accordingly, Negrete’s argument is foreclosed.
For the foregoing reasons, Negrete’s conviction and sentence
are AFFIRMED.