United States v. Ortiz-Grajeda

95 F. App'x 705

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-50928
• Status: Unpublished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 April 21, 2004

Charles R. Fulbruge III Clerk No. 03-50928 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO FELICIANO ORTIZ-GRAJEDA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-03-CR-370-ALL-PRM --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Eduardo Feliciano Ortiz-Grajeda appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation/removal in violation of 8 U.S.C. § 1326.

Ortiz-Grajeda argues that his prior removal hearing deprived him

of due process and therefore that the removal may not be used to

establish an element of the charge that he was in the United

States unlawfully after removal. Ortiz-Grajeda also argues that

his sentence violated due process because it exceeded the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-50928 -2-

statutory maximum sentence for the offense charged in the

indictment. He concedes that his arguments are foreclosed by

Fifth Circuit precedent. Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998); United States v. Lopez-Ortiz, 313 F.3d 225

(5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003). He raises

these issues solely to preserve them for possible 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.