United States v. Martinez-Vargas

* 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that this opinion should not be published and is not precedent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. 01-11301
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARIA MARTINEZ-VARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CR-50-1-C
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April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Maria Martinez-Vargas appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation in violation of 8 U.S.C. § 1326.
Martinez-Vargas contends that 8 U.S.C. § 1326(a) and 8 U.S.C.
§ 1326(b)(2) define separate offenses. He argues that the
aggravated felony conviction that resulted in his increased
sentence is an element of the offense under 8 U.S.C. § 1326(b)(2)
that should have been alleged in his indictment. Martinez-Vargas
maintains that he pleaded guilty to an indictment which charged

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No. 01-11301
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only simple reentry under 8 U.S.C. § 1326(a). He argues that his
sentence exceeds the two-year maximum term of imprisonment which
may be imposed for that offense.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Martinez-Vargas acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his argument for further 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). This court
must follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation marks and citation omitted). The judgment of
the district court is AFFIRMED.
In lieu of filing an appellee’s brief, the Government has
filed a motion to dismiss this appeal. The Government’s motion
to dismiss is DENIED. However, in light of our decision to
affirm the district court’s judgment, the Government need not
file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED.

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