IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21091
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO LOZA-LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-315-1
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October 29, 2002
Before DeMOSS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Alejandro Loza-Luna (“Loza”) appeals his conviction and
sentence for illegal reentry, in violation of 8 U.S.C. § 1326.
He argues, for the first time on appeal, that his sentence was
improperly enhanced under § 1326(b)(2) based on his prior felony
conviction. Loza contends that his prior aggravated felony
conviction was an element of the offense which must have been
charged in the indictment following Apprendi v. New Jersey, 530
U.S. 466 (2000), and that § 1326(b), treating the conviction as
*
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that this opinion should not be published and is not precedent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. 01-21091
-2-
an enhancement rather than an element of the offense, is
unconstitutional.
As Loza concedes, his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), cert. denied, 531 U.S. 1202 (2001).
Loza next contends, also for the first time on appeal, that
the district court should have suppressed evidence of his prior
deportation because his prior administrative deportation
proceedings violated due process. As he acknowledges, this
argument is similarly foreclosed. See United States v. Benitez-
Villafuerte, 186 F.3d 651 (5th Cir. 1999).
Loza has not demonstrated any error in the district court’s
judgment. Accordingly, the judgment is AFFIRMED.