* 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that this opinion should not be published and is not precedent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

FILED

May 1, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-20973

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLEGARIO CUEVAS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-894-1

--------------------

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Olegario Cuevas appeals his conviction and sentence for

illegal reentry after deportation, a violation of 8 U.S.C.

§ 1326. Cuevas first argues that the district court should have

dismissed his indictment because he was denied his right to

retained counsel during the prior deportation proceeding, and

that the district court abused its discretion by failing to grant

an evidentiary hearing on this issue. To challenge the validity
No. 02-20973

-2-

of an underlying deportation order, an alien must establish that: 

(1) the prior deportation hearing was fundamentally unfair; (2)

the hearing effectively eliminated his right to seek judicial

review of the removal order; and (3) the procedural deficiencies

caused actual prejudice. United States v. Lopez-Vasquez, 227

F.3d 476, 483 (5th Cir. 2000). 

Addressing the last requirement first, we conclude that

Cuevas has failed to show prejudice. “A showing of prejudice

means there was a reasonable likelihood that but for the errors

complained of the defendant would not have been deported [or

removed].” United States v. Benitez-Villafuerte, 186 F.3d 651,

658-59 (5th Cir. 1999)(internal quotation omitted). Cuevas first

asserts that an alien denied his right to representation is not

required to show prejudice. He has cited no precedent from this

court to support such a conclusion. In the alternative, he

asserts that he was eligible for a waiver of deportability under

8 U.S.C. § 1181(h). However, as Cuevas concedes in his brief,

this subsection clearly states that it does not apply to a lawful

permanent resident who has been subsequently convicted of an

aggravated felony. Cuevas was deported subsequent to a

conviction for aggravated robbery. We conclude that he has not

demonstrated prejudice. 

Cuevas also contends that, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 8 U.S.C. § 1326(b) is

unconstitutional because it does not require a prior felony
No. 02-20973

-3-

conviction to be proved as an element of the offense. Cuevas

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he raises the issue to

preserve it for Supreme Court review in light of Apprendi. 

Apprendi did not overrule Almendarez-Torres. Apprendi, 530

U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). This court 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). 

AFFIRMED.