United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-20707
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL GARCIA-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-134-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Raul Garcia-Lopez appeals the amended judgment resentencing
him for illegal re-entry of a deported alien, in violation of 8
U.S.C. § 1326(a) and (b)(1).
The sole issue that Garcia-Lopez raises is 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 Garcia-Lopez, his removal
*
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that this opinion should not be published and is not precedent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. 03-20707
-2-
proceeding was fundamentally unfair because the immigration judge
did not inform him of his eligibility to apply for discretionary
relief from deportation. 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 of his eligibility for discretionary relief from
deportation does not rise to the level of fundamental unfairness
necessary to successfully challenge a deportation order. As we
held in a prior order issued in this case, Garcia-Lopez’s
argument that his deportation order cannot be used to support his
conviction under 8 U.S.C. § 1326 is foreclosed by our holding in
Lopez-Ortiz.
The judgment of the district court is therefore AFFIRMED.