IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20257
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASCENCION BAHENA-LAGUNAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-781-1
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ascencion Bahena-Lagunas appeals from a 70-month sentence on
his conviction for being found in the United States after having
been deported in violation of 8 U.S.C. § 1326. Bahena-Lagunas
argues that the district court erred in denying his motion to
suppress evidence of his prior administrative deportation.
Bahena-Lagunas contends the prior deportation proceeding violated
his due process rights. Bahena-Lagunas concedes that his
argument is foreclosed by United States v. Benitez-Villafuerte,
*
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that this opinion should not be published and is not precedent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. 02-20257
-2-
186 F.3d 651 (5th Cir. 1999), however he seeks to preserve his
arguments for Supreme Court review. In Benitez-Villafuerte, this
court held that administrative deportation proceedings under
8 U.S.C. § 1228 comport with due process and that evidence of
such deportation proceedings is admissible in a subsequent
criminal prosecution under 8 U.S.C. § 1326. 186 F.3d at 654.
Bahena-Lagunas also argues for the first time on appeal
that the sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are
unconstitutional in light of the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Bahena-Lagunas
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.
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). Bahena-
Lagunas’s argument is foreclosed. The judgment of the district
court is AFFIRMED.