IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40112 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JUAN HERNANDEZ-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-454-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Juan Hernandez-Martinez appeals the 48-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after having been deported in violation of

. He argues that the sentencing provisions of

(b)(1) & (2) are unconstitutional in light of the

Supreme Court’s holding in Apprendi v. New Jersey,

(2000). Hernandez-Martinez acknowledges that his argument is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40112 -2-

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States,

(1998), but he seeks to preserve

the issue for Supreme Court review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

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

(2001). Hernandez-

Martinez’ argument is foreclosed. The judgment of the district

court is AFFIRMED.