IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20399 c/w
No. 02-20421
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME CRUZ-GARCIA,
Defendant-Appellant.
Appeals from the United States District Court
For the Southern District of Texas
H-02-CR-97
February 13, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jaime Cruz-Garcia, an alien, appeals the revocation of his
supervised release following conviction for possession with intent
to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and
his conviction and sentence for being found unlawfully present in
*
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should not be published and is not precedent except under the limited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.
the United States following removal, in violation of 8 U.S.C.
§ 1326(a) and (b)(2).
Cruz-Garcia argues that the district court reversibly erred
when it denied his collateral challenge to his 1998 removal order,
which forms the basis for his 8 U.S.C. § 1326 conviction, which in
turn forms the basis for his supervised release for his earlier
marijuana conviction. Cruz-Garcia’s collateral challenge is
premised upon the Supreme Court’s holding in INS v. St. Cyr.1 He
argues that the procedure employed in connection with his removal
was fundamentally unfair because he was not advised that he was
eligible to apply for discretionary relief from deportation
pursuant to 8 U.S.C. § 1182(c), Immigration and Nationality Act §
212(c).
To succeed in his collateral challenge, Cruz-Garcia must
establish, inter alia, that his removal proceeding was
fundamentally unfair.2 In Lopez-Ortiz, we recently examined a
factually similar collateral challenge to a removal order in light
of St. Cyr and held that, “[b]ecause eligibility for INA § 212(c)
relief is not a liberty or property interest warranting due process
protection, . . . the Immigration Judge’s error in failing to
explain Lopez-Ortiz’s eligibility [for INA § 212(c) relief] does
1
533 U.S. 289 (2001).
2
See United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002),
cert. denied, - S. Ct. - , 2003 WL 99693 (Jan. 13, 2003) (No. 02-7628).
2
not rise to the level of fundamental unfairness.”3 Our holding in
Lopez-Ortiz precludes a finding that Cruz-Garcia’s removal
proceedings were fundamentally unfair, since all of Cruz-Garcia’s
arguments supporting his collateral attack are premised on the
availability of INA § 212(c) discretionary relief.4 We need not
address the other components of Cruz-Garcia’s collateral challenge
to his deportation order.5
Cruz argues for the first time on appeal that 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional because a prior felony
conviction is an element of the offense of illegal re-entry, and
not merely a sentence enhancement, and should have been charged in
the indictment and proven beyond a reasonable doubt. His argument
is foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States.6
Accordingly, the district court’s judgment is AFFIRMED.
3
Id. at 231.
4
See id. at 228-31.
5
See id. at 230-31.
6
523 U.S. 224, 239-47 (1998); see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000) (we must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it”).
3