United States v. Cantu-Sanchez

95 F. App'x 608

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004

Charles R. Fulbruge III Clerk No. 03-20690 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE ALBERTO CANTU-SANCHEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-737-ALL --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Jorge Alberto Cantu-Sanchez was found guilty following a

bench trial of being found unlawfully present in the United

States after deportation, in violation of 8 U.S.C. § 1326(a). He

argues that the indictment should be dismissed under United

States v. Mendoza-Lopez, 481 U.S. 828 (1987), because the

immigration judge who ordered him deported erred in failing to

advise him that he possessed a right to apply for discretionary

relief from deportation for which he was eligible to apply. He

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-20690 -2-

concedes that his argument is foreclosed by United States v.

Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), and he raises the

claim solely to preserve the issue for further review.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that an appellee’s brief not be required. The motion is GRANTED.

The judgment of the district court is AFFIRMED.

AFFIRMED; MOTION GRANTED.