                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 September 28, 2004

                           ____________________              Charles R. Fulbruge III
                                                                     Clerk
                               No. 04-50081
                             Summary Calendar
                           ____________________



UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

MARCELINO RAMON NEGRETE-MENDOZA,

                                       Defendant-Appellant.


                    -------------------------
          Appeal From the United States District Court
                for the Western District of Texas
                            (03-CR-54)
                    -------------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     Marcelino     Ramon   Negrete-Mendoza   (“Negrete”)    appeals      his

conviction and 71-month sentence for illegal reentry following

deportation subsequent to an aggravated felony conviction.               The

district court determined that Negrete had failed to establish that

his removal proceeding was fundamentally unfair and therefore

denied Negrete’s collateral challenge to his removal.




     *
       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this opinion should not be published and is not precedent except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. 04-50081
                                  -2-

     An alien seeking to collaterally challenge an order of removal

in an 8 U.S.C. § 1326 prosecution must establish (1) that        the

removal 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 8 U.S.C. § 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.

     Negrete argues that his removal proceeding was fundamentally

unfair because he was denied the opportunity to apply for relief

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

the removal order had an impermissible retroactive effect. He also

contends that he satisfies the remainder of the requirements to

collaterally challenge his removal.

     The record reveals that Negrete was represented by counsel at

his removal hearing before an immigration judge and that counsel

was of the opinion that Negrete was not eligible for relief under

§ 212(c).   The record also reveals that Negrete argued that he was

eligible for relief under § 212(c) before the Board of Immigration

Appeals.    Negrete has failed to show that his removal proceedings

were fundamentally unfair.    See United States v. Lopez-Ortiz, 313

F.3d 225, 230-31 (5th Cir. 2002).
                               No. 04-50081
                                    -3-

       Negrete also argues that because his indictment did not allege

the fact of his prior aggravated felony conviction as a separate

element of the offense, the indictment charged him only with an

offense under 8 U.S.C. § 1326(a) rather than 8 U.S.C.           § 1326(b).

He contends that his sentence should be limited to the maximum

authorized under 8 U.S.C. § 1326(a).           Negrete   acknowledges that

his argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), but wishes to preserve the issue for Supreme

Court review in light of 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).      Thus, we must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”      Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted). Accordingly, Negrete’s argument is foreclosed.



       For the foregoing reasons, Negrete’s conviction and sentence

are AFFIRMED.
