United States v. Martinez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50345 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HORACIO MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-1648-ALL-DB -------------------- August 22, 2002 Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Horacio Martinez appeals the sentence imposed following his

guilty plea conviction of attempting to illegally reenter the

United States after deportation in violation of 8 U.S.C. § 1326.

Martinez complains that his sentence was improperly enhanced

pursuant to 8 U.S.C. § 1326(b)(2) based on his prior deportation

following an aggravated felony conviction. Martinez argues that

the sentencing provision violates the Due Process Clause because

it permitted the sentencing judge to find, under a preponderance

of the evidence standard, a fact which increased the statutory

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50345 -2-

maximum sentence to which he otherwise would have been exposed.

Martinez thus contends that his sentence is invalid and argues

that it should not exceed the two-year maximum term of

imprisonment prescribed in 8 U.S.C. § 1326(a).

In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause. Id. at 239-47.

Martinez acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

He seeks to preserve his argument for further review.

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), cert. denied, 531 U.S. 1202 (2001). 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). The judgment of

the district court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.