United States v. Garza-Garza

78 F. App'x 432

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 29, 2003
• Docket: 03-20268
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 29, 2003

Charles R. Fulbruge III Clerk No. 03-20268 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADALBERTO GARZA-GARZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-195-1 --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Adalberto Garza-Garza appeals his conviction for illegal

reentry of a deported alien following deportation subsequent to a

conviction for an aggravated felony, in violation of 8 U.S.C.

§§ 1326(a) and (b)(2). Garza-Garza raises two challenges to his

conviction, both of which he concedes are foreclosed by this

circuit’s precedent. He also requests that this court remand for

a correction of the judgment of his conviction, which contains a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-20268 -2-

clerical error indicating that he pleaded guilty when in fact he

was found guilty after a bench trial.

Garza-Garza first argues that the deportation order

underlying his 8 U.S.C. § 1326 conviction was obtained in

violation of his due process rights and that the district court

erred by denying his motion to dismiss the indictment on that

basis. According to Garza-Garza, his removal proceeding was

fundamentally unfair because the immigration judge did not

correctly inform him of his eligibility to apply for

discretionary relief pursuant to Immigration and Nationality Act

§ 212(c). In United States v. Lopez-Ortiz, 313 F.3d 225, 231

(5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003), this court

held that an immigration judge’s failure to inform an alien at

his removal hearing of his eligibility for Immigration and

Nationality Act § 212(c) relief does not rise to the level of

fundamental unfairness necessary to successfully challenge a

deportation order. Garza-Garza’s argument that his deportation

order cannot be used to support his conviction under 8 U.S.C.

§ 1326 is therefore foreclosed.

Garza-Garza next challenges his conviction by arguing that

use of the felony and aggravated felony provisions of 8 U.S.C.

§ 1326(b) as sentencing factors is unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that

this argument is also foreclosed, but raises it to preserve it

for further review. In Almendarez-Torres v. United States, 523 No. 03-20268 -3-

U.S. 224, 228-47 (1998), the Supreme Court held that the

sentencing provisions in § 1326(b) were not unconstitutional.

Garza asserts that Almendarez-Torres has been called into doubt

by Apprendi.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted). Thus, this argument is also foreclosed by

circuit precedent.

Garza pleaded not guilty and was convicted in a bench trial

on stipulated facts. The written judgment erroneously states

that Garza pleaded guilty. Garza requests that this court remand

the case to the district court so that the district court can

correct this error. The Government concedes that this court

should remand for correcting the clerical error. The case is

therefore REMANDED for correction of the clerical error. FED.

R. CRIM. P. 36; United States v. Johnson, 588 F.2d 961, 964 (5th

Cir. 1979).

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN

JUDGMENT.