                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 27, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40168
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARTIN MARTINEZ-CARRILLO,
also known as Carlos Alejandro Rivera-Perez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. M-03-CR-930-ALL
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Martin Martinez-Carrillo appeals his guilty-plea conviction

of and sentence for being found in the United States after

previously being deported.   Martinez-Carrillo argues that plain

error occurred at sentencing when the Government did not verbally

recommend that he be sentenced at the low end of the guideline

range as required by the plea agreement and instead attempted to

influence the court by repeating negative facts about Martinez-

Carrillo to the court.

     *
       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this opinion should not be published and is not precedent except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. 04-40168
                                 -2-

     The Government’s promise to so recommend was satisfied by

the inclusion of the terms of the plea agreement in the

presentence report.    See United States v. Reeves, 255 F.3d 208,

210-11 (5th Cir. 2001).    Martinez-Carrillo’s argument that the

Government breached the plea agreement by emphasizing his past

involvement with firearms is also unavailing.    The prosecutor’s

comments regarding Martinez-Carrillo’s criminal history were in

direct response to the court’s question as to whether there was

any redeeming information about Martinez-Carrillo that it had

overlooked.    Such efforts by the Government to provide relevant

factual information to the court at sentencing do not violate a

plea agreement.    See United States v. Block, 660 F.2d 1086, 1091

(5th Cir. 1981).    Our determination that no plain error occurred

at sentencing is supported by the fact that the Government did

not raise the issue of sentencing Martinez-Carrillo to the high

end of the guideline range but, in fact, it was the court that

raised the issue of a possible upwards departure from the

guideline range.    See United States v. Wilder, 15 F.3d 1292, 1301

(5th Cir. 1994).    Martinez-Carrillo has not demonstrated plain

error.    See Reeves, 255 F.3d at 210.

     Martinez-Carrillo also argues that the felony and aggravated

felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).    As Martinez-Carrillo concedes, his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
                           No. 04-40168
                                -3-

(1998).   Apprendi did not overrule Almendarez-Torres.   See

Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).   The judgment of the district

court is AFFIRMED.
