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United States v. Hector Martinez-Carrillo ( 2020 )


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  • Case: 20-50377   Document: 00515564913   Page: 1   Date Filed: 09/15/2020
United States Court of Appeals
for the Fifth Circuit                       United States Court of Appeals
Fifth Circuit
FILED
September 15, 2020
No. 20-50377
Summary Calendar                   Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Hector Miguel Martinez-Carrillo, also known as Hector
Migue Martinez-Carrillo, also known as Hector Miguel
Martinez-C, also known as Hector Miguel Carrillo-
Martinez,
Defendant—Appellant,
consolidated with
_____________
No. 20-50379
Summary Calendar
_____________
United States of America,
Plaintiff—Appellee,
versus
Hector Miguel Martinez-Carrillo,
Defendant—Appellant.
Case: 20-50377      Document: 00515564913           Page: 2     Date Filed: 09/15/2020
No. 20-50377
c/w No. 20-50379
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-900-1
USDC No. 4:20-CR-73-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Hector Miguel Martinez-Carrillo appeals his sentence of 16 months
and three years of supervised release, which the district court imposed
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. He also appeals from the judgment revoking his supervised release.
He argues that the enhancement of his sentence based on his prior conviction
pursuant to § 1326(b)(1), which increased the statutory maximum terms of
imprisonment and supervised release, is unconstitutional because his prior
conviction is treated as a sentencing factor rather than an element of the
offense that must be alleged in the indictment and found by a jury beyond a
reasonable doubt. He concedes that the issue is foreclosed by Almendarez-
Torres v. United States,
    523 U.S. 224 
    (1998), but he seeks to preserve the issue
for further review.     The Government moves for summary affirmance,
asserting that Martinez-Carrillo’s argument is foreclosed.
The parties are correct that Martinez-Carrillo’s assertion is foreclosed
by Almendarez-Torres. See United States v. Wallace,
    759 F.3d 486
    , 497 (5th
Cir. 2014); United States v. Rojas-Luna,
    522 F.3d 502
    , 505-06 (5th Cir. 2008).
Further, Martinez-Carrillo has abandoned a challenge to the revocation of his
supervised release by failing to brief an argument as to the revocation. See
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
2
Case: 20-50377     Document: 00515564913        Page: 3    Date Filed: 09/15/2020
No. 20-50377
c/w No. 20-50379
United States v. Reagan,
    596 F.3d 251
    , 254-55 (5th Cir. 2010). Accordingly,
summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969), the Government’s alternative motion for
an extension of time to file a brief is DENIED, and the judgments of the
district court are AFFIRMED.
3