IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40206
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO MARTINEZ-MONTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-434-1
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Hugo Martinez-Montes (Martinez) appeals the 46-month
sentence imposed following his guilty plea to illegal reentry
following deportation after his conviction for an aggravated
felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Martinez
argues, for the first time on appeal, that the sentence-enhancing
provisions contained in 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional on their face and as applied in light of the
*
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that this opinion should not be published and is not precedent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. 02-40206
-2-
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000).
Martinez concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review. 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). This court must
follow the precedent set in Almendarez-Torres “unless and until
the Supreme Court itself determines to overrule it.” Dabeit, 231
F.3d at 984 (internal quotation marks and citation omitted).
Accordingly, the district court’s judgment is AFFIRMED.