IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50699 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO GARCIA-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-656-1 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Juan Antonio Garcia-Martinez appeals the 57-month term of

imprisonment imposed following his guilty plea conviction of

attempting to illegally reenter the United States after

deportation in violation of

. Garcia-Martinez

complains that his sentence was improperly enhanced pursuant to

(b)(2) based on his prior deportation following an

aggravated felony conviction. Garcia-Martinez argues that the

sentencing provision violates the Due Process Clause because it

permitted the sentencing judge to find, under a preponderance of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50699 -2-

the evidence standard, a fact which increased the statutory

maximum sentence to which he otherwise would have been exposed.

Garcia-Martinez thus contends that his sentence is invalid and

argues that it should not exceed the two-year maximum term of

imprisonment prescribed in

(a). Garcia-Martinez

acknowledges that his argument is foreclosed by the Supreme

Court’s decision in Almendarez-Torres v. United States,

(1998), but seeks to preserve the issue for Supreme Court

review in light of the decision in Apprendi v. New Jersey,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). Garcia-

Martinez’s argument is foreclosed. The judgment of the district

court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.