United States v. Canales-Siguenza

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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-330-ALL
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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this opinion should not be published and is not precedent except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withdrawn his application for) adjustment of status.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
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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.