IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20389 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ENRIQUE MOLINA-GONZALES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-408-ALL -------------------- January 6, 2003

Before REAVLEY, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

Enrique Molina-Gonzales (“Molina”) was convicted of illegal

reentry into the United States after deportation, a violation of

. He first argues that his prior deportation

violated due process and should not have been used to support the

instant conviction. To challenge the validity of an underlying

deportation order, an alien must establish that: (1) the prior

deportation hearing was fundamentally unfair; (2) the hearing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20389 -2-

effectively eliminated the alien’s right to seek judicial review

of the removal order; and (3) the procedural deficiencies caused

actual prejudice. United States v. Lopez-Vasquez,

(5th Cir. 2000).

On appeal, Molina argues that the hearing was fundamentally

unfair because the immigration judge (“IJ”) failed to inform him

of the possibility of relief from removal under former § 212(c)

of the Immigration and Nationality Act, as required by

(a)(2). At the hearing, the IJ found that Molina was not

eligible for relief. Assuming that an error by an IJ regarding

eligibility for discretionary relief from removal would render a

hearing fundamentally unfair, Molina’s argument fails.

First, the finding that no relief was available was correct

at the time, at least as to possible relief argued by Molina on

appeal. He concedes that at the time of the hearing in 1998,

§ 212(c) relief was no longer available. See also INS v. St.

Cyr,

(2001)(discussing amendment and repeal of

§ 212(c)). Second, Molina was ineligible for this relief.

Section 212(c) authorized any “permanent resident alien with a

lawful unrelinquished domicile of seven consecutive years to

apply for a discretionary waiver from deportation.” Id. at 295

(internal quotation omitted). Molina’s lawful domicile began in

1992, when he obtained lawful permanent resident status, and the

removal hearing was held approximately six years later in 1998.

Finally, even though St. Cyr resurrected the possibility of No. 02-20389 -3-

§ 212(c) relief for aliens who would have been eligible at the

time of their plea, see id. at 326, Molina would have been

ineligible. At the time of his guilty plea in 1995, Molina had

accrued only three of the requisite seven years of lawful

domicile. Therefore, the district court did not err in denying

Molina’s motion to dismiss the instant indictment.

Molina next argues that his prior conviction for possession

of marijuana did not merit an eight-level adjustment pursuant to

§ 2L1.2(b)(1)(C) for an aggravated felony. His arguments

regarding the definitions of “drug trafficking offense” and

“aggravated felony” recently were rejected in United States v.

Caicedo-Cuero, __ F.3d __ (5th Cir. Nov. 14, 2002, No. 02-20751),

at *6-*11. The district court did not err in

applying the eight-level adjustment. See

Molina argues that § 1326(b)(2) is unconstitutional because

it treats a prior conviction for an aggravated felony as a mere

sentencing factor and not an element of the offense. Molina

concedes that his argument is foreclosed by Almendarez-Torres v.

United States,

(1998), but he seeks to preserve the

issue for Supreme Court review in light of the decision in

Apprendi v. New Jersey,

(2000).

Apprendi did

not overrule Almendarez-Torres. See Apprendi,

; see also United States v. Dabeit,

(5th

Cir. 2000). Accordingly, this argument lacks merit.

AFFIRMED.