                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 17, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-51081
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FIDEL CASTANON-ALVAREZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 2:04-CR-914-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Fidel Castanon-Alvarez (Castanon) appeals his conditional

guilty plea conviction and 37-month sentence for illegal reentry

following deportation.    Castanon argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional, in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).    Castanon’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Castanon contends that Almendarez-Torres was incorrectly


     *
       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this opinion should not be published and is not precedent except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. 05-51081
                                  -2-

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding.     See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).     Castanon

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     Castanon asserts that the district court erred in denying

his motion to dismiss the indictment because his prior

deportation order was fundamentally unfair.    An alien seeking to

collaterally challenge an order of deportation or removal in a

§ 1326 prosecution must establish (1) that proceeding was

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

eliminated” his right to challenge the proceeding by means of

judicial review; and (3) that “procedural deficiencies” actually

prejudiced him.    United States v. Mendoza-Mata, 322 F.3d 829, 832

(5th Cir. 2003)(citation omitted); see also § 1326(d).      If the

alien fails to establish one prong of the test, the others need

not be considered.     See Mendoza-Mata, 322 F.3d at 832.

     Castanon argues that he was denied the opportunity to be

heard and to present evidence in support of his claims for

discretionary relief and that the deportation order had an

impermissible retroactive effect.    However, Castanon requested a

type of discretionary relief for which he was not eligible.
                            No. 05-51081
                                 -3-

Moreover, the 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).   As Castanon concedes, this court has

rejected his assertion about the retroactive effect of the

definition of deportable offenses; he seeks to preserve the issue

for Supreme Court review.   See Max-George v. Reno, 205 F.3d 194,

200 (5th Cir. 2000), vacated on other grounds, 533 U.S. 945

(2001).

     We conclude that Castanon has failed to show that he was

denied the opportunity to be heard or that his deportation

proceedings were fundamentally unfair.     Consequently, the

judgment of the district court is AFFIRMED.
