     Case: 16-10870      Document: 00513915851         Page: 1    Date Filed: 03/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-10870                                    FILED
                                  Summary Calendar                            March 17, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                    Clerk


                                                 Plaintiff-Appellee

v.

VICTOR MARTINEZ-RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-275-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Victor Martinez-Ramirez pleaded guilty to one count of being illegally
present in the United States following deportation.                  The district court
sentenced Martinez-Ramirez within the applicable guidelines range to 46
months of imprisonment, to be followed by a three-year term of supervised
release.    In his only argument on appeal, Martinez-Ramirez asserts that
because the indictment did not allege his prior aggravated felony conviction,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-10870    Document: 00513915851       Page: 2   Date Filed: 03/17/2017


                                   No. 16-10870

his sentence, which exceeded the two-year statutory maximum set forth in 8
U.S.C. § 1326(a), constituted a violation of his due process rights. He concedes
that his argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), but he maintains that the reasoning of this case has been
called into question by Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne v. United States, 133 S. Ct. 2151 (2013).
      The Government has filed a motion for a summary affirmance or,
alternatively, for an extension of time to file a merits brief.         Summary
affirmance is proper when, among other instances, “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969).
      As Martinez-Ramirez concedes, his due process argument is foreclosed
by Almendarez-Torres.     Although Apprendi and Alleyne require that facts
increasing the statutory maximum or minimum sentence must be submitted
to a jury and proved beyond a reasonable doubt, they have preserved an
exception for prior convictions. Alleyne, 133 S. Ct. at 2160-64 & n.1; Apprendi,
530 U.S. at 489-90.     Accordingly, the Government’s motion for summary
affirmance is GRANTED.        The Government’s alternative motion for an
extension of time to file a brief is DENIED.




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