United States v. Ortiz-Grajeda

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50928
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO FELICIANO ORTIZ-GRAJEDA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-370-ALL-PRM
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Eduardo Feliciano Ortiz-Grajeda appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Ortiz-Grajeda argues that his prior removal hearing deprived him
of due process and therefore that the removal may not be used to
establish an element of the charge that he was in the United
States unlawfully after removal. Ortiz-Grajeda also argues that
his sentence violated due process because it exceeded the

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No. 03-50928
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statutory maximum sentence for the offense charged in the
indictment. He concedes that his arguments are foreclosed by
Fifth Circuit precedent. Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998); United States v. Lopez-Ortiz, 313 F.3d 225
(5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003). He raises
these issues solely to preserve them for possible further review.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
The judgment of the district court is AFFIRMED.
AFFIRMED; MOTION GRANTED.

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