United States v. Martinez-Galvan

* 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that this opinion should not be published and is not precedent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. 99-21050
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MARTINEZ-GALVAN, also known as David Galvan-Martinez, also
known as Jose Juan Serna, also known as Cockeye, also known as
David Gomez-Martinez, also known as David Martinez-Gomez, also
known as Juanio Lara, also known as David G Martinez, also known
as David Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-246-ALL
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
David Martinez-Galvan (“Martinez-Galvan”) appeals the
51-month sentence imposed following his plea of guilty to a
charge of being found in the United States after deportation, a
violation of 8 U.S.C. § 1326. He argues that the felony
conviction that resulted in his increased sentence under 8 U.S.C.
§ 1326(b)(2) was an element of the offense that should have been
charged in the indictment.

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No. 99-21050
-2-
Martinez-Galvan acknowledges that his argument is 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 in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), petition for cert. filed, (U.S. Jan. 26,
2001)(No. 00-8299). Martinez-Galvan’s argument is foreclosed.
The judgment of the district court is AFFIRMED.

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