United States v. Jalomo-Gallo

* 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that this opinion should not be published and is not precedent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
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41698
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ARMANDO JALOMO-GALLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-569-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Armando Jalomo-Gallo (“Jalomo”) appeals from his
conviction of illegal reentry following deportation. Jalomo
contends that the district court erred by denying his motions to
withdraw his guilty plea, suppress evidence, and dismiss his
indictment. He contends that his 1996 deportation proceeding
violated the Due Process Clause because the immigration judge
erroneously informed him that he was not eligible for
discretionary relief from deportation. Jalomo also contends, for

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No. 02-41698
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the first time on appeal, 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). Jalomo
concedes that his contentions are foreclosed by this court’s case
law, but he raises them to preserve them for further review.
An immigration judge’s error in not informing an alien of
eligibility for forms of discretionary relief does not violate
the alien’s right to due process. United States v. Lopez-Ortiz,
313 F.3d 225, 230-31 (5th Cir. 2002), cert. denied, 537 U.S. 1135
(2003). The district court did not err by denying Jalomo’s
motions to withdraw the plea, suppress evidence, and dismiss the
indictment.
Apprendi did not overrule Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). We
must follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation and citation omitted). Accordingly, Jalomo
has not established error, plain or otherwise, with respect to
his conviction under 8 U.S.C. § 1326(b)(2).
AFFIRMED.

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