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.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:00-CR-29-1
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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that this opinion should not be published and is not precedent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.