IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50285
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MARTINEZ-ORTEGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-1556-ALL
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Carlos Martinez-Ortega appeals the 46-month term of
imprisonment imposed following his conviction of being found in
the United States after removal in violation of 8 U.S.C. § 1326.
Martinez-Ortega argues, for the first time on appeal, that his
sentence should not have exceeded the two-year maximum term of
imprisonment prescribed in 8 U.S.C. § 1326(a). Martinez-Ortega
acknowledges that his argument is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224 (1998), but seeks to preserve the issue for Supreme Court
*
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that this opinion should not be published and is not precedent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. 01-50285
-2-
review in light of the decision in Apprendi v. New Jersey, 530
U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Martinez-
Ortega’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.