United States v. Gutierrez-Martinez ( 2000 )


Menu:
  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 00-50417
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ENRIQUE GUTIERREZ-MARTINEZ,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. DR-99-CR-680-01
    --------------------
    December 14, 2000
    Before DAVIS, STEWART, and PARKER, Circuit Judges.
    PER CURIAM:*
    Enrique Gutierrez-Martinez appeals his sentence following
    his guilty plea conviction for illegal reentry following
    deportation in violation of 
    8 U.S.C. § 1326
    (a) and (b).
    Gutierrez argues that a prior felony conviction is an element of
    the offense that must be alleged in the indictment rather than a
    sentencing factor.   Gutierrez 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 the light of Apprendi v. New Jersey, 120 S. Ct.
    *
    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    that this opinion should not be published and is not precedent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. 00-50417
    -2-
    2348 (2000).   Gutierrez’s argument is foreclosed by
    Almendarez-Torres, 
    523 U.S. at 235
    .   See United States v. Dabeit,
    ___ F.3d ___ (5th Cir. Oct. 30, 2000, No. 00-10065), 
    2000 WL 1634264
    , at *4.
    AFFIRMED.
    

Document Info

Docket Number: 00-50417

Filed Date: 12/15/2000

Precedential Status: Non-Precedential

Modified Date: 4/17/2021