United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 29, 2003
Charles R. Fulbruge III
Clerk
No. 03-20268
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADALBERTO GARZA-GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-195-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Adalberto Garza-Garza appeals his conviction for illegal
reentry of a deported alien following deportation subsequent to a
conviction for an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Garza-Garza raises two challenges to his
conviction, both of which he concedes are foreclosed by this
circuit’s precedent. He also requests that this court remand for
a correction of the judgment of his conviction, which contains a
*
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that this opinion should not be published and is not precedent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. 03-20268
-2-
clerical error indicating that he pleaded guilty when in fact he
was found guilty after a bench trial.
Garza-Garza first argues that the deportation order
underlying his 8 U.S.C. § 1326 conviction was obtained in
violation of his due process rights and that the district court
erred by denying his motion to dismiss the indictment on that
basis. According to Garza-Garza, his removal proceeding was
fundamentally unfair because the immigration judge did not
correctly inform him of his eligibility to apply for
discretionary relief pursuant to Immigration and Nationality Act
§ 212(c). In United States v. Lopez-Ortiz, 313 F.3d 225, 231
(5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003), this court
held that an immigration judge’s failure to inform an alien at
his removal hearing of his eligibility for Immigration and
Nationality Act § 212(c) relief does not rise to the level of
fundamental unfairness necessary to successfully challenge a
deportation order. Garza-Garza’s argument that his deportation
order cannot be used to support his conviction under 8 U.S.C.
§ 1326 is therefore foreclosed.
Garza-Garza next challenges his conviction by arguing that
use of the felony and aggravated felony provisions of 8 U.S.C.
§ 1326(b) as sentencing factors is unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that
this argument is also foreclosed, but raises it to preserve it
for further review. In Almendarez-Torres v. United States, 523
No. 03-20268
-3-
U.S. 224, 228-47 (1998), the Supreme Court held that the
sentencing provisions in § 1326(b) were not unconstitutional.
Garza asserts that Almendarez-Torres has been called into doubt
by Apprendi.
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). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). Thus, this argument is also foreclosed by
circuit precedent.
Garza pleaded not guilty and was convicted in a bench trial
on stipulated facts. The written judgment erroneously states
that Garza pleaded guilty. Garza requests that this court remand
the case to the district court so that the district court can
correct this error. The Government concedes that this court
should remand for correcting the clerical error. The case is
therefore REMANDED for correction of the clerical error. FED.
R. CRIM. P. 36; United States v. Johnson, 588 F.2d 961, 964 (5th
Cir. 1979).
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN
JUDGMENT.