United States v. Martinez-Flores

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 21, 2024
• Docket: 23-10991
• Status: Unpublished

Opinion

Case: 23-10991 Document: 40-1 Page: 1 Date Filed: 03/21/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10991 Summary Calendar FILED ____________ March 21, 2024 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Enrique Martinez-Flores,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:23-CR-83-1 ______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam: * Enrique Martinez-Flores appeals his sentence of 36 months of impris- onment and three years of supervised release following his guilty-plea con- viction of illegal reentry after deportation in violation of 8 U.S.C. § 1326. He contends that the district court erred in imposing more than two years in prison and more than one year of supervised release without an indictment

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10991 Document: 40-1 Page: 2 Date Filed: 03/21/2024

No. 23-10991

alleging, or any jury finding beyond a reasonable doubt, that he had been convicted of a felony before the removal specified in the indictment. As Martinez-Flores correctly concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Garza-De La Cruz, 16 F.4th 1213, 1213–14 (5th Cir. 2021). He raises the issue to preserve it for Supreme Court review. The government has moved, without opposition, for summary affirm- ance, or in the alternative, for an extension of time to file a brief on the merits. Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The government’s unopposed motion for summary affirmance is GRANTED, and the judgment of conviction and sentence is AFFIRMED. The government’s alternative motion for an extension of time to file a brief is DENIED as moot.