IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21144
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GIOVANNI RODRIGUEZ-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CR-474-1)
July 19, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Giovanni Rodriguez-Martinez appeals the 46-month sentence
imposed following his guilty plea to a charge of being found in the
United States after deportation in violation of 8 U.S.C. § 1326.
He contends that the prior 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 charged in the indictment.
*
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should not be published and is not precedent except under the limited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.
Rodriguez-Martinez acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v.
United States,1 but he seeks to preserve the issue for Supreme
Court review in light of Apprendi v. New Jersey.2 Since
Apprendi did not overrule Almendarez-Torres,3 Rodriguez-Martinez’s
argument is foreclosed in this court.4 Therefore, the judgment of
the district court is AFFIRMED.
1
523 U.S. 224 (1998).
2
530 U.S. 466 (2000).
3
See Apprendi, 530 U.S. at 489-90.
4
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001).
2