United States v. Martinez-Amaya ( 2023 )

Case: 22-50859 Document: 00516696919 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50859
FILED
March 31, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Elmer Alexander Martinez-Amaya,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-262-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Elmer Alexander Martinez-Amaya appeals his conviction and
sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a)
and (b)(1). In his sole issue on appeal, Martinez-Amaya contends that
§ 1326(b) is unconstitutional because it permits a sentence above the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50859 Document: 00516696919 Page: 2 Date Filed: 03/31/2023
No. 22-50859
otherwise-applicable statutory maximum based on facts that were neither
alleged in the indictment nor found by a jury beyond a reasonable doubt.
He has filed an unopposed motion for summary disposition and a
letter brief explaining that he has raised this issue only to preserve it for
further review and conceding that this issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937
F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is
appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969), Martinez-Amaya’s motion is GRANTED, and the district court’s
judgment is AFFIRMED.
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