IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20157
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE HUMBERTO MARTINEZ-SAENZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-308-ALL
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August 6, 2001
Before JOLLY, DAVIS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jorge Humberto Martinez-Saenz was convicted of illegal
reentry into the United States after having been previously
deported. His base offense level was increased by 16 because his
prior deportation followed an aggravated felony conviction.
Martinez-Saenz argues that 8 U.S.C. § 1326(b) is a separate
offense such that his indictment was insufficient because it did
not allege that his prior deportation followed an aggravated
felony conviction. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
*
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that this opinion should not be published and is not precedent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. 01-20157
-2-
243 (1998)), wherein the Court held that § 1326(b) established
only a sentencing factor. Id. at 12. He contends that the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), calls into question the holding in Almendarez-Torres.
Apprendi did not overrule Almendarez-Torres, and we must follow
the rule announced in Almendarez-Torres. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S.
Ct. 1214 (2001).
AFFIRMED.