IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20389
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE MOLINA-GONZALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-408-ALL
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January 6, 2003
Before REAVLEY, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Enrique Molina-Gonzales (“Molina”) was convicted of illegal
reentry into the United States after deportation, a violation of
8 U.S.C. § 1326. He first argues that his prior deportation
violated due process and should not have been used to support the
instant conviction. To challenge the validity of an underlying
deportation order, an alien must establish that: (1) the prior
deportation hearing was fundamentally unfair; (2) the hearing
*
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that this opinion should not be published and is not precedent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. 02-20389
-2-
effectively eliminated the alien’s right to seek judicial review
of the removal order; and (3) the procedural deficiencies caused
actual prejudice. United States v. Lopez-Vasquez, 227 F.3d 476,
483 (5th Cir. 2000).
On appeal, Molina argues that the hearing was fundamentally
unfair because the immigration judge (“IJ”) failed to inform him
of the possibility of relief from removal under former § 212(c)
of the Immigration and Nationality Act, as required by 8 C.F.R.
§ 240.11(a)(2). At the hearing, the IJ found that Molina was not
eligible for relief. Assuming that an error by an IJ regarding
eligibility for discretionary relief from removal would render a
hearing fundamentally unfair, Molina’s argument fails.
First, the finding that no relief was available was correct
at the time, at least as to possible relief argued by Molina on
appeal. He concedes that at the time of the hearing in 1998,
§ 212(c) relief was no longer available. See also INS v. St.
Cyr, 533 U.S. 289, 297 (2001)(discussing amendment and repeal of
§ 212(c)). Second, Molina was ineligible for this relief.
Section 212(c) authorized any “permanent resident alien with a
lawful unrelinquished domicile of seven consecutive years to
apply for a discretionary waiver from deportation.” Id. at 295
(internal quotation omitted). Molina’s lawful domicile began in
1992, when he obtained lawful permanent resident status, and the
removal hearing was held approximately six years later in 1998.
Finally, even though St. Cyr resurrected the possibility of
No. 02-20389
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§ 212(c) relief for aliens who would have been eligible at the
time of their plea, see id. at 326, Molina would have been
ineligible. At the time of his guilty plea in 1995, Molina had
accrued only three of the requisite seven years of lawful
domicile. Therefore, the district court did not err in denying
Molina’s motion to dismiss the instant indictment.
Molina next argues that his prior conviction for possession
of marijuana did not merit an eight-level adjustment pursuant to
§ 2L1.2(b)(1)(C) for an aggravated felony. His arguments
regarding the definitions of “drug trafficking offense” and
“aggravated felony” recently were rejected in United States v.
Caicedo-Cuero, __ F.3d __ (5th Cir. Nov. 14, 2002, No. 02-20751),
2002 WL 31521599 at *6-*11. The district court did not err in
applying the eight-level adjustment. See id.
Molina argues that § 1326(b)(2) is unconstitutional because
it treats a prior conviction for an aggravated felony as a mere
sentencing factor and not an element of the offense. Molina
concedes that his argument is foreclosed by 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. 466 (2000). Id. 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). Accordingly, this argument lacks merit.
AFFIRMED.