                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     December 30, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 04-50381
                        Summary Calendar


                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                             versus

  JOSE MANUEL TREVINO-ZARAGOZA, also known as Jose Z. Trevino,
                  also known as Hector Trevino,

                                                Defendant-Appellant.


          Appeal from the United States District Court
                for the Western District of Texas
                       (SA-03-CR-478-ALL)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Manuel Trevino-Zaragoza appeals his 8 U.S.C. § 1326

conviction and sentence for illegal reentry following deportation

subsequent to an aggravated felony conviction.    The district court

determined Trevino failed to establish his underlying deportation

proceeding was fundamentally unfair and therefore denied Trevino’s

collateral challenge.

     A due process challenge to deportation proceedings providing

the basis for a 8 U.S.C. § 1326 conviction is reviewed de novo.


     *
       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this opinion should not be published and is not precedent except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.
E.g. United States v. Hernandez-Avalos, 251 F.3d 505, 507 (5th

Cir.), cert. denied, 534 U.S. 935 (2001).             An alien seeking to

collaterally challenge an order of deportation in an 8 U.S.C. §

1326    prosecution   must   establish:       (1)     the   proceeding   was

“fundamentally unfair”; (2) the proceeding “effectively eliminated”

his right to challenge the proceeding by means of judicial review;

and (3) “procedural deficiencies” actually prejudiced him.           United

States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003) (citation

omitted); see also 8 U.S.C. § 1326(d).

       Trevino contends:     he was denied the opportunity to present

his claims for discretionary relief in the deportation proceedings;

and the deportation order had an impermissible retroactive effect

on his decision to plead guilty to the crime for which he was

deported.    Trevino requested types of discretionary relief for

which he was not eligible; he did not request, and the court did

not suggest, access to any other relief.            While Trevino may have

been eligible to seek other forms of discretionary relief, a

court’s failure to inform an alien of types of discretionary relief

for which he is eligible does not violate due process.           See United

States v. Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002), cert.

denied, 537 U.S. 1135 (2003).           Nor did the Immigration Judge’s

failure to consider Trevino’s eligibility for discretionary relief

unfairly affect Trevino’s prior understanding of the consequences

of his guilty plea.


                                    2
     Trevino also raises two foreclosed issues to preserve them for

Supreme Court review.     First, he contends 8 U.S.C. § 1326(b) is

unconstitutional.   He acknowledges this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

relies upon Apprendi v. New Jersey, 530 U.S. 466 (2000).    Apprendi

did not overrule Almendarez-Torres.     See Apprendi, 530 U.S. at

489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),

cert. denied, 531 U.S. 1202 (2001).       Second, relying on Blakely

v. Washington, 124 S. Ct. 2531 (2004), Trevino contends the federal

Sentencing   Guidelines    are   unconstitutional.     As   Trevino

acknowledges, this argument is foreclosed by this court’s decision

in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), petition

for cert. filed (U.S. 14 July 2004)(No. 04-5263).

                                                       AFFIRMED




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