United States v. Aurelio Morales-Cruz , 382 F. App'x 399 ( 2010 )

Case: 09-50713 Document: 00511147826 Page: 1 Date Filed: 06/21/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2010
No. 09-50713
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AURELIO MORALES-CRUZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-177-1
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Aurelio Morales-Cruz (Morales) appeals his conviction and sentence
following a bench trial for illegal reentry after having been deported, a violation
of 8 U.S.C. § 1326. Morales argues that he was not previously convicted of an
aggravated felony, as that term is defined 8 U.S.C. § 1101(a)(43), since he did
not serve a term of imprisonment for his sexual assault conviction. Because he
was not previously convicted of an aggravated felony, Morales contends that the
underlying deportation order was fundamentally unfair and invalid. As such,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50713 Document: 00511147826 Page: 2 Date Filed: 06/21/2010
No. 09-50713
Morales asserts that the district court erred in denying his motion to dismiss the
indictment; convicting him of illegal reentry; and granting the Government’s
motion to enhance his sentence.
An alien who is prosecuted under § 1326 may, under certain
circumstances, challenge the deportation order that is used as an element of the
criminal offense. United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987);
United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999). To do so,
the alien must establish that: (1) the prior deportation hearing was
fundamentally unfair; (2) the hearing effectively eliminated the alien’s right to
seek judicial review of the removal order; (3) the procedural deficiencies caused
actual prejudice; and, (4) the alien has exhausted his administrative remedies.
United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); § 1326(d)(1).
Morales fails to show that his deportation hearing was fundamentally
unfair inasmuch as the hearing did not violate his procedural due process rights.
See Lopez-Ortiz, 313 F.3d at 230. As such, he fails to show that the district court
erred in denying his motion to dismiss the indictment; convicting him of illegal
reentry; and granting the Government’s motion to enhance his sentence.
Before the district court, Morales objected to the presentence report’s
(PSR) determination that he was previously convicted of sexual assault of a child
and that the crime constituted a crime of violence warranting a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Morales, who is represented
by counsel on appeal, does not sufficiently brief this issue before this court.
Thus, the issue is not preserved and need not be considered by this court. See
Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Accordingly, the
judgment of the district court is AFFIRMED.
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