United States v. Marin-Maldonado

Case: 21-50731 Document: 00516237646 Page: 1 Date Filed: 03/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 14, 2022
No. 21-50731
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Marco Antonio Marin-Maldonado,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-171-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Marco Antonio Marin-Maldonado appeals his within-guidelines
sentence of 51 months of imprisonment and three years of supervised release,
which the district court imposed following his guilty plea conviction for
illegal reentry into the United States, in violation of 8 U.S.C. § 1326. For the
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50731 Document: 00516237646 Page: 2 Date Filed: 03/14/2022
No. 21-50731
first time on appeal, he argues that his illegal reentry sentence, imposed
under § 1326(b)(2), violates his due process rights by exceeding the two-year
statutory maximum set forth in § 1326(a) because the indictment did not
allege a prior conviction necessary for the § 1326(b)(2) enhancement. He
concedes that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further
review. The Government filed an unopposed motion for summary
affirmance agreeing that the issue is foreclosed and, in the alternative, a
motion for an extension of time to file a brief.
As the Government argues, and Marin-Maldonado concedes, the sole
issue raised on appeal is foreclosed by Almendarez-Torres. See United States
v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759
F.3d 486, 497 (5th Cir. 2014). Because the issue is foreclosed, summary
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the district court’s judgment is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
2