United States v. Martinez-Vasquez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III
Clerk
No. 02-41785
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELOY MARTINEZ-VASQUEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1005-ALL
--------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Eloy Martinez-Vasquez (Martinez) appeals his guilty-plea

conviction for illegal reentry into the United States following

deportation in violation of 8 U.S.C. § 1326. For the first time

on appeal, Martinez argues that the sentencing provisions of 8

U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Martinez

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

*
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that this opinion should not be published and is not precedent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. 02-41785
-2-

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).

Martinez also challenges a condition of supervised release

set forth in the written judgment that prohibits him from

possessing “any other dangerous weapon.” Martinez argues that

this provision must be deleted from the written judgment because

the district court did not mention the condition when it orally

pronounced sentence. We find no error in the written judgment.

See United States v. Torres-Aguilar, 352 F.3d 934, 935-38 (5th

Cir. 2003).

AFFIRMED.