United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-51081
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL CASTANON-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-914-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Fidel Castanon-Alvarez (Castanon) appeals his conditional
guilty plea conviction and 37-month sentence for illegal reentry
following deportation. Castanon argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Castanon’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Castanon contends that Almendarez-Torres was incorrectly
*
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this opinion should not be published and is not precedent except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. 05-51081
-2-
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Castanon
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
Castanon asserts that the district court erred in denying
his motion to dismiss the indictment because his prior
deportation order was fundamentally unfair. An alien seeking to
collaterally challenge an order of deportation or removal in a
§ 1326 prosecution must establish (1) that proceeding was
“fundamentally unfair”; (2) that the proceeding “effectively
eliminated” his right to challenge the proceeding by means of
judicial review; and (3) that “procedural deficiencies” actually
prejudiced him. United States v. Mendoza-Mata, 322 F.3d 829, 832
(5th Cir. 2003)(citation omitted); see also § 1326(d). If the
alien fails to establish one prong of the test, the others need
not be considered. See Mendoza-Mata, 322 F.3d at 832.
Castanon argues that he was denied the opportunity to be
heard and to present evidence in support of his claims for
discretionary relief and that the deportation order had an
impermissible retroactive effect. However, Castanon requested a
type of discretionary relief for which he was not eligible.
No. 05-51081
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Moreover, the failure to inform an alien of types of
discretionary relief for which he is eligible does not violate
due process. See United States v. Lopez-Ortiz, 313 F.3d 225,
230-31 (5th Cir. 2002). As Castanon concedes, this court has
rejected his assertion about the retroactive effect of the
definition of deportable offenses; he seeks to preserve the issue
for Supreme Court review. See Max-George v. Reno, 205 F.3d 194,
200 (5th Cir. 2000), vacated on other grounds, 533 U.S. 945
(2001).
We conclude that Castanon has failed to show that he was
denied the opportunity to be heard or that his deportation
proceedings were fundamentally unfair. Consequently, the
judgment of the district court is AFFIRMED.