                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 27, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-51150
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE GARZA MENDEZ, also known as Jose Garza,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 5:03-CR-327-ALL
                       --------------------

Before JOLLY, JONES, and OWEN, Circuit Judges.

PER CURIAM:*

     Following his conditional guilty plea, Jose Garza Mendez was

convicted of one charge of illegal reentry into the United States

and sentenced to serve 27 months in prison.    Garza Mendez appeals

the district court’s denial of his motion to dismiss the

indictment.    Garza Mendez further argues that his sentence was

improper under Apprendi v. New Jersey, 530 U.S. 466, 488 (2000).

     Garza Mendez argues that his indictment was invalid because

the underlying deportation order, which was based on his prior


     *
       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this opinion should not be published and is not precedent except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. 04-51150
                                -2-

conviction for driving while intoxicated, is invalid under United

States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001).    The

denial of a motion to dismiss an indictment is reviewed de novo.

United States v. Wilson, 249 F.3d 366, 371 (5th Cir. 2001).      To

prevail on a challenge to the validity of an underlying

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

deportation hearing was fundamentally unfair, (2) the hearing

effectively eliminated his right to seek judicial review of the

removal order, and (3) the procedural deficiencies caused actual

prejudice.   United States v. Lopez-Vasquez, 227 F.3d 476, 483

(5th Cir. 2000); 8 U.S.C. § 1326(d).

     Garza Mendez has not shown that his deportation hearing

violated his due process rights.     See United States v. Lopez-

Ortiz, 313 F.3d 225, 230 (5th Cir. 2002).    He concomitantly has

not shown that this hearing was fundamentally unfair.     See id.

Consequently, Garza Mendez has not shown that the district court

erred in denying his motion to dismiss the indictment, and we

need not consider his remaining arguments in relation to this

claim.

     Garza Mendez also argues that his sentence is invalid under

Apprendi v. New Jersey, 530 U.S. 466 (2000).    This claim is, as

Garza Mendez concedes, foreclosed.    See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).
                           No. 04-51150
                                -3-

     Garza Mendez has shown no error in the district court’s

denial of his motion to dismiss the indictment or in the judgment

of conviction.   Consequently, the judgment of the district court

is AFFIRMED.
