United States v. Martinez-Arratia ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-40414
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN MARTINEZ-ARRATIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-660-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Martin Martinez-Arratia (Martinez) appeals his guilty-plea
conviction and sentence for being an alien unlawfully found in
the United States after deportation. He argues for the first
time on appeal that 8 U.S.C. § 1326(b) is unconstitutional
because it does not require the prior aggravated felony
conviction used to increase his sentence to be proven as an
element of the offense. He contends that his conviction should
be reformed to the lesser included offense in 8 U.S.C. § 1326(a)
*
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that this opinion should not be published and is not precedent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.
No. 03-40414
-2-
and that he should be resentenced to no more than two years of
imprisonment.
Martinez 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 (2000).
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). Martinez’s argument is foreclosed. The
judgment of the district court is AFFIRMED.