United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40272
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRISTOBAL SANCHEZ-PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-22-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Cristobal Sanchez-Pena (“Sanchez”) pleaded guilty to
illegally re-entering the United States after having been
deported, a violation of 8 U.S.C. § 1326(a), and his sentence
was enhanced pursuant to the “aggravated felony” provision in
8 U.S.C. § 1326(b). The district court sentenced him to 33
months in prison and to three years of supervised release.
Sanchez contends that the district court erred by denying
his motion to suppress evidence of his deportation. He argues
*
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this opinion should not be published and is not precedent except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. 04-40272
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that his 1998 deportation proceeding violated the Due Process
Clause because the immigration judge erroneously informed him
that he was ineligible for discretionary relief from deportation
under former § 212(c) of the Immigration and Nationality Act
(“INA”). Sanchez concedes that his contention is foreclosed by
this court’s case law, but he raises the claim to preserve it for
further review.
An immigration judge’s error in informing an alien of
eligibility for forms of discretionary relief under the INA does
not violate the alien’s right to due process. United States v.
Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002). The district
court did not err by denying Sanchez’s motion to suppress
evidence of his deportation.
For the first time on appeal, Sanchez argues that 8 U.S.C.
§ 1326(b) is unconstitutional under Apprendi v. New Jersey,
530 U.S. 466 (2000), because it does not require the fact of a
prior felony or aggravated-felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. As Sanchez
concedes, this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and Almendarez-Torres was not
overruled by Apprendi. See United States v. Sarmiento-Funes,
374 F.3d 336, 346 (5th Cir. 2004).
Sanchez also argues that the Supreme Court’s holding in
Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied
to sentences determined under the United States Sentencing
No. 04-40272
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Guidelines. He concedes that this argument is foreclosed by this
court’s recent opinion in United States v. Pineiro, 377 F.3d 464,
465 (5th Cir. 2004), petition for cert. filed (U.S. July 14,
2004) (No. 04-5263), but he raises it to preserve it for possible
further review.
AFFIRMED.