United States v. Garza-Hernandez

* 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this opinion should not be published and is not precedent except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. 00-40941
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN GARZA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-136-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Martin Garza-Hernandez appeals his guilty-plea conviction
for illegal reentry following deportation, a violation of 8
U.S.C. § 1326. Garza argues that, in light of the Supreme
Court's decision in Apprendi v. New Jersey, 530 U.S. 466, ___,
120 S. Ct. 2348, 2362-63 (2000), his prior felony conviction was
an element of the offense and that the indictment was
fundamentally defective in failing to allege that element.
Accordingly, Garza contends, the district court erred by
increasing his offense level pursuant to U.S.S.G.

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No. 00-40941
-2-
§ 2L1.2(b)(1)(A). As Garza acknowledges, this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). See United States v. Chapa-Garza, ___ F.3d ___ (5th
Cir. Mar. 1, 2001), 2001 WL 209468, *6; United States v. Nava-
Perez, 242 F.3d 277, ___ (5th Cir. Feb. 12, 2001), 2001 WL
118395, *2.
AFFIRMED.

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