IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50417
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE GUTIERREZ-MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-680-01
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Enrique Gutierrez-Martinez appeals his sentence following
his guilty plea conviction for illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a) and (b).
Gutierrez argues that a prior felony conviction is an element of
the offense that must be alleged in the indictment rather than a
sentencing factor. Gutierrez 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 Jersey, 120 S. Ct.
*
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that this opinion should not be published and is not precedent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. 00-50417
-2-
2348 (2000). Gutierrez’s argument is foreclosed by
Almendarez-Torres, 523 U.S. at 235. See United States v. Dabeit,
___ F.3d ___ (5th Cir. Oct. 30, 2000, No. 00-10065), 2000 WL
1634264, at *4.
AFFIRMED.
United States v. Gutierrez-Martinez
Combined Opinion