USA vs. Pacheco-Martinez, (5th Cir. 2001)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50653

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OFELIA PACHECO-MARTINEZ, also known as

Ofelia Pacheco de Martinez,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-00-CR-134-1-EP

February 15, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:* Ofelia Pacheco-Martinez appeals her sentence following her guilty plea conviction for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Pacheco argues that her sentence should not have exceeded the two-year maximum sentence under 8 U.S.C. § 1326(a). Pacheco acknowledges that her argument is foreclosed by Almendarez-Torres v. United States,523 U.S. 224 (1998), but she seeks to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey,530 U.S. 466 (2000). Pacheco's argument is foreclosed by Almendarez-Torres, 523 U.S. at 235.

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.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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