IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50456
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MARTINEZ-PEREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1713-ALL-DB
--------------------
December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Jorge Martinez-Perez appeals his sentence following a guilty
plea conviction for illegal reentry after deportation, a
violation of 8 U.S.C. § 1326. He was sentenced pursuant to 8
U.S.C. § 1326(b)(2) as an alien previously deported after an
aggravated felony. Martinez argues that 8 U.S.C. § 1326(b)(2)
defines a separate offense and includes the additional element of
an aggravated felony; because his indictment did not include this
element, he argues his sentence under 8 U.S.C. § 1326(b)(2)
violates due process. See blue brief, 7. In the alternative, he
*
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that this opinion should not be published and is not precedent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. 00-50456
-2-
argues that 8 U.S.C. § 1326(b)(2) is an unconstitutional
sentencing enhancement.
Martinez acknowledges that his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve these issues for possible Supreme Court review
in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
However, until overruled by the Supreme Court, these arguments
remain foreclosed by the decision in Almendarez-Torres. See
United States v. Dabeit, No. 00-10065, 2000 WL 1634264, at *4
(5th Cir. Oct. 30, 2000).
AFFIRMED.
United States v. Martinez-Perez
Combined Opinion