United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004

Charles R. Fulbruge III Clerk No. 04-40272 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRISTOBAL SANCHEZ-PENA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:03-CR-22-1 --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Cristobal Sanchez-Pena (“Sanchez”) pleaded guilty to

illegally re-entering the United States after having been

deported, a violation of

(a), and his sentence

was enhanced pursuant to the “aggravated felony” provision in

(b). The district court sentenced him to 33

months in prison and to three years of supervised release.

Sanchez contends that the district court erred by denying

his motion to suppress evidence of his deportation. He argues

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40272 -2-

that his 1998 deportation proceeding violated the Due Process

Clause because the immigration judge erroneously informed him

that he was ineligible for discretionary relief from deportation

under former § 212(c) of the Immigration and Nationality Act

(“INA”). Sanchez concedes that his contention is foreclosed by

this court’s case law, but he raises the claim to preserve it for

further review.

An immigration judge’s error in informing an alien of

eligibility for forms of discretionary relief under the INA does

not violate the alien’s right to due process. United States v.

Lopez-Ortiz,

(5th Cir. 2002). The district

court did not err by denying Sanchez’s motion to suppress

evidence of his deportation.

For the first time on appeal, Sanchez argues that

(b) is unconstitutional under Apprendi v. New Jersey,

(2000), because it does not require the fact of a

prior felony or aggravated-felony conviction to be charged in the

indictment and proved beyond a reasonable doubt. As Sanchez

concedes, this argument is foreclosed by Almendarez-Torres v.

United States,

(1998), and Almendarez-Torres was not

overruled by Apprendi. See United States v. Sarmiento-Funes,

(5th Cir. 2004).

Sanchez also argues that the Supreme Court’s holding in

Blakely v. Washington,

(2004), should be applied

to sentences determined under the United States Sentencing No. 04-40272 -3-

Guidelines. He concedes that this argument is foreclosed by this

court’s recent opinion in United States v. Pineiro,

(5th Cir. 2004), petition for cert. filed (U.S. July 14,

2004) (No. 04-5263), but he raises it to preserve it for possible

further review.

AFFIRMED.