United States v. Martinez-Martinez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41154 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CATARINO MARTINEZ-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-203-1 -------------------- June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Catarino Martinez-Martinez appeals the 77-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after deportation, a violation of 8 U.S.C.

§ 1326. He contends that the felony conviction that resulted in

his increased sentence under 8 U.S.C. § 1326(b)(2) was an element

of the offense that should have been alleged in the indictment.

Martinez acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States,

523 U.S. 224 (1998), but he seeks to preserve the issue for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41154 -2-

Supreme Court review in light of the decision in 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), cert. denied, 121 S. Ct. 1214 (2001).

Martinez’s argument is foreclosed. The judgment of the district

court is

AFFIRMED.