United States v. Hernandez-Martinez

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40112
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JUAN HERNANDEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-454-1
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Juan Hernandez-Martinez appeals the 48-month sentence
imposed following his plea of guilty to a charge of being found
in the United States after having been deported in violation of
8 U.S.C. § 1326. He argues that the sentencing provisions of
8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in light of the
Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466
(2000). Hernandez-Martinez acknowledges that his argument is

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No. 02-40112
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foreclosed by the Supreme Court’s decision in 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). Hernandez-
Martinez’ argument is foreclosed. The judgment of the district
court is AFFIRMED.

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