United States v. Martinez-Castro

* 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that this opinion should not be published and is not precedent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. 00-40668
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORIO MARTINEZ-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-93-1
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Gregorio Martinez-Castro appeals his sentence following his
guilty plea conviction for illegal re-entry after deportation in
violation of 8 U.S.C. § 1326(a) and (b). Martinez-Castro argues
that his prior felony conviction was an element of the offense of
the instant conviction that had to be alleged in the indictment.
Martinez-Castro acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for possible Supreme Court review in
light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).

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No. 00-40668
-2-
Martinez-Castro's argument is foreclosed by Almendarez-
Torres, 523 U.S. at 235.
AFFIRMED.

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