United States v. Sotelo-Mendoza , 76 F. App'x 567 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50314
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDINO SOTELO-MENDOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(EP-02-CR-1268-ALL-DB)
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Bernardino Sotelo-Mendoza ("Sotelo")
appeals his conviction and sentence for being found in the United
States after removal, in violation of 8 U.S.C. § 1326. Sotelo
asserts that the removal order underlying his 8 U.S.C. § 1326
conviction was obtained in violation of his due process rights. He
argues that the immigration judge and the Bureau of Immigration
Appeals erred in applying retroactively particular statutory
changes to the immigration laws, thereby prohibiting him from
*
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this opinion should not be published and is not precedent except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.
applying for discretionary relief from removal pursuant to
Immigration and Nationality Act § 212(c). Sotelo contends that the
district court should not have denied his motion to dismiss the
indictment on that basis.
An alien seeking to challenge a prior deportation order in a
prosecution for illegal reentry under 8 U.S.C. § 1326 must
establish that (1) the prior hearing was fundamentally unfair;
(2) the hearing effectively eliminated the right of the alien to
challenge the hearing by means of judicial review of the order; and
(3) the procedural deficiencies caused the alien actual prejudice.
See United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir.
2003); see also United States v. Mendoza-Lopez, 481 U.S. 828, 839
(1987). If the alien fails to establish any prong of the test, we
need not consider the others. United States v. Encarnacion-Galvez,
964 F.2d 402, 406 (5th Cir. 1992).
Sotelo 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), cert. denied, 537 U.S. 1135 (2003).
Sotelo, who has two prior convictions for annoying or molesting a
child and another conviction for possession of heroin for sale, has
also failed to show actual prejudice by dmonstrating a reasonable
likelihood that he would have been granted discretionary relief.
See Mendoza-Mata, 322 F.3d at 833-34.
Sotelo argues further that because his indictment did not
allege the fact of his prior aggravated felony conviction as a
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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). As such, he insists, his maximum punishment must be
limited to two years. Sotelo nevertheless 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, Sotelo's argument is foreclosed. For the forgoing
reasons, Sotelo’s conviction and sentence are
AFFIRMED.
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