United States v. Trevino-Zaragoza , 119 F. App'x 632 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 30, 2004
Charles R. Fulbruge III
Clerk
No. 04-50381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL TREVINO-ZARAGOZA, also known as Jose Z. Trevino,
also known as Hector Trevino,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(SA-03-CR-478-ALL)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Manuel Trevino-Zaragoza appeals his 8 U.S.C. § 1326conviction and sentence for illegal reentry following deportation
subsequent to an aggravated felony conviction. The district court
determined Trevino failed to establish his underlying deportation
proceeding was fundamentally unfair and therefore denied Trevino’s
collateral challenge.
A due process challenge to deportation proceedings providing
the basis for a 8 U.S.C. § 1326 conviction is reviewed de novo.
*
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this opinion should not be published and is not precedent except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.
E.g. United States v. Hernandez-Avalos, 251 F.3d 505, 507 (5th
Cir.), cert. denied, 534 U.S. 935 (2001). An alien seeking to
collaterally challenge an order of deportation in an 8 U.S.C. §
1326 prosecution must establish: (1) the proceeding was
“fundamentally unfair”; (2) the proceeding “effectively eliminated”
his right to challenge the proceeding by means of judicial review;
and (3) “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).
Trevino contends: he was denied the opportunity to present
his claims for discretionary relief in the deportation proceedings;
and the deportation order had an impermissible retroactive effect
on his decision to plead guilty to the crime for which he was
deported. Trevino requested types of discretionary relief for
which he was not eligible; he did not request, and the court did
not suggest, access to any other relief. While Trevino may have
been eligible to seek other forms of discretionary relief, a
court’s failure to inform an alien of types of discretionary relief
for which he is eligible does not violate due process. See United
States v. Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002), cert.
denied, 537 U.S. 1135 (2003). Nor did the Immigration Judge’s
failure to consider Trevino’s eligibility for discretionary relief
unfairly affect Trevino’s prior understanding of the consequences
of his guilty plea.
2
Trevino also raises two foreclosed issues to preserve them for
Supreme Court review. First, he contends 8 U.S.C. § 1326(b) is
unconstitutional. He acknowledges this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
relies upon 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),
cert. denied, 531 U.S. 1202 (2001). Second, relying on Blakely
v. Washington, 124 S. Ct. 2531 (2004), Trevino contends the federal
Sentencing Guidelines are unconstitutional. As Trevino
acknowledges, this argument is foreclosed by this court’s decision
in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), petition
for cert. filed (U.S. 14 July 2004)(No. 04-5263).
AFFIRMED
3