USA v. Martinez-Munoz, No. 23-10293 (5th Cir. 2023)

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Case: 23-10293 Document: 00516996327 Page: 1 Date Filed: 12/11/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10293 Summary Calendar ____________ FILED December 11, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Ricardo Fortino Martinez-Munoz, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-296-1 ______________________________ Before Higginbotham, Stewart, and Southwick, Circuit Judges. Per Curiam: * Ricardo Fortino Martinez-Munoz appeals the sentence imposed following his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegal reentry after deportation. Martinez-Munoz argues that his sentence exceeds the statutory maximum and is thus unconstitutional because the district court applied the § 1326(b) enhancement based on the fact of a prior conviction _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10293 Document: 00516996327 Page: 2 Date Filed: 12/11/2023 No. 23-10293 that was neither alleged in the indictment nor admitted by him at rearraignment. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises this issue to preserve it for further review. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). The Government moves, without opposition, for summary affirmance, or, alternatively, for an extension of time to file a brief. Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion for summary affirmance is GRANTED, and the alternative motion for an extension of time to file a brief is DENIED. The judgment is AFFIRMED. 2

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