IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21043
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO GALVAN-AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-337-ALL
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August 15, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Fernando Galvan-Aguilar was convicted of illegal reentry
into the United States following deportation in violation of 8
U.S.C. § 1326. Galvan appeals his conviction and sentence on
several grounds.
Galvan challenges a sixteen-level increase to his base
offense level pursuant to U.S.S.G. § 2L1.2. Galvan’s argument
that mere possession of cocaine does not qualify as an
“aggravated felony” for purposes of § 2L1.2 is foreclosed by our
*
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that this opinion should not be published and is not precedent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. 00-21043
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decision in United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
(5th Cir. 1997).
Galvan acknowledges that his appellate argument is at least
partially foreclosed by Hinojosa-Lopez but argues that a
determination that he committed a drug-trafficking offense when
he merely possessed cocaine violates the rule of lenity. “The
rule of lenity . . . applies only when, after consulting
traditional canons of statutory construction, [a court is] left
with an ambiguous statute.” United States v. Shabani, 513 U.S.
10, 17 (1994) (emphasis added). The term “aggravated felony” was
not so ambiguous as to require an application of the rule of
lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.
Galvan’s due process argument also is unconvincing. Galvan
is challenging a sentencing guideline, not a criminal statute.
“Due process does not mandate . . . notice, advice, or a probable
prediction of where, within the statutory range, the guideline
sentence will fall.” United States v. Pearson, 910 F.2d 221, 223
(5th Cir. 1990).
Galvan also challenges the district court’s denial of his
motion to suppress a 1998 removal order. He contends that the
expedited removal under 8 U.S.C. § 1228(b) was obtained in
violation of his due process rights. “In order successfully to
collaterally attack a deportation order in a § 1326 prosecution,
the alien must show the 1) the hearing was fundamentally unfair,
2) that the hearing effectively eliminated the right of the alien
to challenge the hearing by means of judicial review of the
deportation, and 3) the procedural deficiencies caused him actual
No. 00-21043
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prejudice.” United States v. Benitez-Villafuerte, 186 F.3d 651,
658 (5th Cir. 1999), cert. denied, 120 S. Ct. 838 (2000).
Because Galvan was an alien who was also an aggravated felon, it
cannot be said that his “removal through expedited administrative
proceedings constitutes a denial of justice or was otherwise
unfair.” United States v. Hernandez-Avalos, 251 F.3d 505, 508
(internal quotation omitted). Accordingly this challenge must
fail. Benitez-Villafuerte, 186 F.3d at 658.
Finally, Galvan contends that the felony conviction that
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)
was an element of the offense that should have been charged in
the indictment. Galvan acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 46 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 488; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Galvan’s
argument is foreclosed.
Galvan’s conviction and sentence are AFFIRMED.