United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-51150
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GARZA MENDEZ, also known as Jose Garza,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:03-CR-327-ALL
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Before JOLLY, JONES, and OWEN, Circuit Judges.
PER CURIAM:*
Following his conditional guilty plea, Jose Garza Mendez was
convicted of one charge of illegal reentry into the United States
and sentenced to serve 27 months in prison. Garza Mendez appeals
the district court’s denial of his motion to dismiss the
indictment. Garza Mendez further argues that his sentence was
improper under Apprendi v. New Jersey, 530 U.S. 466, 488 (2000).
Garza Mendez argues that his indictment was invalid because
the underlying deportation order, which was based on his prior
*
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this opinion should not be published and is not precedent except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. 04-51150
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conviction for driving while intoxicated, is invalid under United
States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001). The
denial of a motion to dismiss an indictment is reviewed de novo.
United States v. Wilson, 249 F.3d 366, 371 (5th Cir. 2001). To
prevail on a challenge to the validity of an underlying
deportation order, an alien must establish that: (1) the prior
deportation hearing was fundamentally unfair, (2) the hearing
effectively eliminated his right to seek judicial review of the
removal order, and (3) the procedural deficiencies caused actual
prejudice. United States v. Lopez-Vasquez, 227 F.3d 476, 483
(5th Cir. 2000); 8 U.S.C. § 1326(d).
Garza Mendez has not shown that his deportation hearing
violated his due process rights. See United States v. Lopez-
Ortiz, 313 F.3d 225, 230 (5th Cir. 2002). He concomitantly has
not shown that this hearing was fundamentally unfair. See id.
Consequently, Garza Mendez has not shown that the district court
erred in denying his motion to dismiss the indictment, and we
need not consider his remaining arguments in relation to this
claim.
Garza Mendez also argues that his sentence is invalid under
Apprendi v. New Jersey, 530 U.S. 466 (2000). This claim is, as
Garza Mendez concedes, foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
No. 04-51150
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Garza Mendez has shown no error in the district court’s
denial of his motion to dismiss the indictment or in the judgment
of conviction. Consequently, the judgment of the district court
is AFFIRMED.