IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-20399 c/w No. 02-20421 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME CRUZ-GARCIA,

Defendant-Appellant.

Appeals from the United States District Court For the Southern District of Texas H-02-CR-97

February 13, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jaime Cruz-Garcia, an alien, appeals the revocation of his

supervised release following conviction for possession with intent

to distribute marijuana, in violation of

(a)(1), and

his conviction and sentence for being found unlawfully present in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the United States following removal, in violation of

(a) and (b)(2).

Cruz-Garcia argues that the district court reversibly erred

when it denied his collateral challenge to his 1998 removal order,

which forms the basis for his

conviction, which in

turn forms the basis for his supervised release for his earlier

marijuana conviction. Cruz-Garcia’s collateral challenge is

premised upon the Supreme Court’s holding in INS v. St. Cyr.1 He

argues that the procedure employed in connection with his removal

was fundamentally unfair because he was not advised that he was

eligible to apply for discretionary relief from deportation

pursuant to

(c), Immigration and Nationality Act §

212(c).

To succeed in his collateral challenge, Cruz-Garcia must

establish, inter alia, that his removal proceeding was

fundamentally unfair.2 In Lopez-Ortiz, we recently examined a

factually similar collateral challenge to a removal order in light

of St. Cyr and held that, “[b]ecause eligibility for INA § 212(c)

relief is not a liberty or property interest warranting due process

protection, . . . the Immigration Judge’s error in failing to

explain Lopez-Ortiz’s eligibility [for INA § 212(c) relief] does

1

(2001). 2 See United States v. Lopez-Ortiz,

(5th Cir. 2002), cert. denied, - S. Ct. - ,

(Jan. 13, 2003) (No. 02-7628).

2 not rise to the level of fundamental unfairness.”3 Our holding in

Lopez-Ortiz precludes a finding that Cruz-Garcia’s removal

proceedings were fundamentally unfair, since all of Cruz-Garcia’s

arguments supporting his collateral attack are premised on the

availability of INA § 212(c) discretionary relief.4 We need not

address the other components of Cruz-Garcia’s collateral challenge

to his deportation order.5

Cruz argues for the first time on appeal that

(b)(1) and (2) are unconstitutional because a prior felony

conviction is an element of the offense of illegal re-entry, and

not merely a sentence enhancement, and should have been charged in

the indictment and proven beyond a reasonable doubt. His argument

is foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States.6

Accordingly, the district court’s judgment is AFFIRMED.

3

. 4 See

. 5 See

.

6

(1998); see also United States v. Dabeit,

(5th Cir. 2000) (we must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it”).

3