United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-20011
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO CRUZ-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-171-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Marco Antonio Cruz-Perez appeals from his conviction of
illegal reentry following deportation after conviction of an
aggravated felony. He contends that the district court erred by
denying his motion for suppression of evidence and dismissal of
his indictment because his previous removal proceeding violated
the Due Process Clause due to the immigration judge’s failure to
inform him of the possibility of discretionary relief from
deportation; that the district court erred by treating his two
*
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this opinion should not be published and is not precedent except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. 04-20011
-2-
state-court robbery convictions separately when calculating his
criminal history score; and that 8 U.S.C. § 1326(b) is facially
unconstitutional.
Cruz-Perez’s argument that his previous removal order
violated the Due Process Clause is foreclosed. United States v.
Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002), cert. denied,
537 U.S. 1135 (2003). The district court’s finding that Cruz-
Perez’s February 1995 robberies were not informally consolidated
and were unrelated was not clearly erroneous. See Buford v.
United States, 532 U.S. 59, 64-66 (2001). Cruz-Perez’s robberies
were factually distinct, and they were neither formally nor
informally consolidated in any manner recognized by this court.
See United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998);
United States v. Fitzhugh, 984 F.2d 143, 147 n.18 (5th Cir.
1993). Finally, Cruz-Perez’s argument regarding the
constitutionality of 8 U.S.C. § 1326(b) is foreclosed. United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.