United States v. Jose Contreras-Martinez , 712 F. App'x 446 ( 2018 )

Case: 17-50399 Document: 00514350281 Page: 1 Date Filed: 02/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50399
Fifth Circuit
Summary Calendar
FILED
February 16, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JOSE DANILO CONTRERAS-MARTINEZ,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 2:16-CR-1135-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Jose Contreras-Martinez appeals his 27-month sentence for illegal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
Case: 17-50399 Document: 00514350281 Page: 2 Date Filed: 02/16/2018
No. 17-50399
reentry after deportation. He asserts that his indictment did not allege that
he had a prior conviction, so his sentence under 8 U.S.C. § 1326(b) violated his
due-process rights by exceeding the two-year statutory maximum in § 1326(a).
The government has filed an unopposed motion for summary affirmance,
asserting that Almendarez-Torres v. United States, 523 U.S. 224 (1998), fore-
closes Contreras-Martinez’s position. Contreras-Martinez concedes that his
argument was rejected in Almendarez-Torres and explains that he raises it to
preserve it for further review; thus, summary affirmance is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED. The
judgment is AFFIRMED. The government’s alternative motion for an exten-
sion of time to file a brief is DENIED.
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