United States v. Martinez-Hernandez ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 00-10887
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CRISTOBAL MARTINEZ-HERNANDEZ,
    Defendant-Appellant.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 1:00-CR-29-1
    - - - - - - - - - -
    February 15, 2001
    Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
    PER CURIAM:*
    Cristobal Martinez-Hernandez appeals his sentence following
    his guilty plea conviction for illegal reentry following
    deportation in violation of 8 U.S.C. § 1326(a) and (b).
    Martinez-Hernandez argues that a prior felony conviction is an
    element of the offense that must be alleged in the indictment
    rather than a sentencing factor.   Martinez-Hernandez acknowledges
    that his argument is foreclosed by Almendarez-Torres v. United
    States, 
    523 U.S. 224
    (1998), but he seeks to preserve the issue
    for possible Supreme Court review in the light of Apprendi v. New
    *
    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    that this opinion should not be published and is not precedent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. 00-10887
    -2-
    Jersey, 
    120 S. Ct. 2348
    (2000).   Apprendi did not overrule
    Almendarez-Torres.   See 
    Apprendi, 120 S. Ct. at 2361-62
    & n.15;
    see also United States v. Dabeit, 
    231 F.3d 979
    , 984 (5th Cir.
    2000), petition for cert. filed, (U.S. Jan. 26, 2001)(No. 00-
    8299).
    As Martinez-Hernandez’s sole argument for appeal is
    foreclosed, the district court’s judgment of conviction is
    AFFIRMED.
    

Document Info

Docket Number: 00-10887

Filed Date: 2/16/2001

Precedential Status: Non-Precedential

Modified Date: 12/21/2014