IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 8, 2008
No. 06-20982
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE GUADALUPE SALINAS-CAMPOS, also known as Jose Salinas
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-161-ALL
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Salinas-Campos (Salinas) appeals his conviction and
sentence following a bench trial for illegal reentry after having been deported,
a violation of 8 U.S.C. § 1326. Salinas argues that the district court erred when
it denied his motion to dismiss the indictment. Salinas contends that his
indictment was invalid because the underlying deportation order, which was
based on his having been convicted of felony driving while intoxicated, is invalid
under United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001). An alien
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20982
who is prosecuted under § 1326 may, under certain circumstances, challenge the
deportation order that is used as an element of the criminal offense. United
States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987); United States v.
Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999). To do so, the alien must
establish that: (1) the prior deportation hearing was fundamentally unfair;
(2) the hearing effectively eliminated the alien’s right to seek judicial review of
the removal order; and (3) the procedural deficiencies caused actual prejudice
and that he has exhausted his administrative remedies. United States v.
Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); § 1326(d)(1).
Salinas fails to show that his deportation hearing was fundamentally
unfair inasmuch as the hearing did not violate his procedural due process rights.
See Lopez-Ortiz, 313 F.3d at 230. The court need not reach Salinas’s remaining
arguments relative to the prior deportation order. See id. at 231.
Salinas argues that his sentence is unreasonable as a matter of law
because this court’s use of a presumption of reasonableness for sentences
imposed within the properly calculated guidelines range effectively reinstates
the mandatory guidelines regime struck down in United States v. Booker,
543 U.S. 220 (2005). This argument is foreclosed. See Rita v. United States,
127 S. Ct. 2456, 2465 (2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Salinas challenges
the constitutionality of § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of the offense that
must be found by a jury. This court has held that this issue is “fully foreclosed
from further debate.” United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th
Cir. 2007), petition for cert. filed (Aug 28, 2007) (No. 07-6202).
The judgment of the district court is AFFIRMED.
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