United States v. Martinez-Munoz ( 2023 )

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
United States of America, Clerk
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.
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