IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50699
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO GARCIA-MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-656-1
--------------------
December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Antonio Garcia-Martinez appeals the 57-month term of
imprisonment imposed following his guilty plea conviction of
attempting to illegally reenter the United States after
deportation in violation of 8 U.S.C. § 1326. Garcia-Martinez
complains that his sentence was improperly enhanced pursuant to
8 U.S.C. § 1326(b)(2) based on his prior deportation following an
aggravated felony conviction. Garcia-Martinez argues that the
sentencing provision violates the Due Process Clause because it
permitted the sentencing judge to find, under a preponderance of
*
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that this opinion should not be published and is not precedent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. 01-50699
-2-
the evidence standard, a fact which increased the statutory
maximum sentence to which he otherwise would have been exposed.
Garcia-Martinez thus contends that his sentence is invalid and
argues that it should not exceed the two-year maximum term of
imprisonment prescribed in 8 U.S.C. § 1326(a). Garcia-Martinez
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
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, 531 U.S. 1202 (2001). Garcia-
Martinez’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.