                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                  IN THE UNITED STATES COURT OF APPEALS          October 2, 2003
                          FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                               No. 03-50314
                             Summary Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

BERNARDINO SOTELO-MENDOZA,

                                        Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                       (EP-02-CR-1268-ALL-DB)
                        --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Bernardino    Sotelo-Mendoza      ("Sotelo")

appeals his conviction and sentence for being found in the United

States after removal, in violation of 8 U.S.C. § 1326.              Sotelo

asserts that the removal order underlying his 8 U.S.C. § 1326

conviction was obtained in violation of his due process rights.           He

argues that the immigration judge and the Bureau of Immigration

Appeals   erred    in   applying   retroactively   particular   statutory

changes to the immigration laws, thereby prohibiting him from

     *
        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this opinion should not be published and is not precedent except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.
applying    for   discretionary   relief   from     removal   pursuant     to

Immigration and Nationality Act § 212(c). Sotelo contends that the

district court should not have denied his motion to dismiss the

indictment on that basis.

     An alien seeking to challenge a prior deportation order in a

prosecution   for   illegal   reentry   under   8   U.S.C.    §   1326   must

establish that (1) the prior hearing was fundamentally unfair;

(2) the hearing effectively eliminated the right of the alien to

challenge the hearing by means of judicial review of the order; and

(3) the procedural deficiencies caused the alien actual prejudice.

See United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir.

2003); see also United States v. Mendoza-Lopez, 481 U.S. 828, 839

(1987).    If the alien fails to establish any prong of the test, we

need not consider the others. United States v. Encarnacion-Galvez,

964 F.2d 402, 406 (5th Cir. 1992).

     Sotelo 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), cert. denied, 537 U.S. 1135 (2003).

Sotelo, who has two prior convictions for annoying or molesting a

child and another conviction for possession of heroin for sale, has

also failed to show actual prejudice by dmonstrating a reasonable

likelihood that he would have been granted discretionary relief.

See Mendoza-Mata, 322 F.3d at 833-34.

     Sotelo argues further that because his indictment did not

allege the fact of his prior aggravated felony conviction as a

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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).    As such, he insists, his maximum punishment must be

limited to two years.   Sotelo nevertheless 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, Sotelo's argument is foreclosed.     For the forgoing

reasons, Sotelo’s conviction and sentence are

AFFIRMED.




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