United States v. Aguilera-De Flores , 82 F. App'x 969 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-20481
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMASA AGUILERA-DE FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-151-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Tomasa Aguilera-De Flores appeals her conviction for illegal
reentry into the country after having been removed following an
aggravated felony conviction. She argues (1) that the district
court should have suppressed the evidence of her prior removal
because that removal was fundamentally unfair 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). She
*
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that this opinion should not be published and is not precedent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. 03-20481
-2-
acknowledges that her arguments are foreclosed, and she seeks to
preserve them for further review.
Aguilera-De Flores’s argument that her inability to seek
discretionary relief under INA § 212(c) in her prior removal
proceedings rendered those proceedings fundamentally unfair and
that evidence of her prior removal should have been suppressed is
without merit. United States v. Lopez-Ortiz, 313 F.3d 225 (5th
Cir. 2002), cert. denied, 537 U.S. 1135 (2003). Her argument
that 8 U.S.C. § 1326(b)(2) is unconstitutional in light of
Apprendi is also without merit. 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.