     Case: 17-50253   Document: 00514389871   Page: 1   Date Filed: 03/16/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                              United States Court of Appeals

                              No. 17-50253
                                                                       Fifth Circuit

                                                                     FILED
                            Summary Calendar                   March 16, 2018
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk


                                         Plaintiff-Appellee

v.

DAVID MARTINEZ-GONZALEZ,

                                         Defendant-Appellant

Cons. w/ No. 17-50300

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

DAVID MARTINEZ,

                                         Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:16-CR-979-1
                          USDC No. 2:16-CR-1029-1
     Case: 17-50253      Document: 00514389871         Page: 2    Date Filed: 03/16/2018


                                     No. 17-50253
                                   c/w No. 17-50300

Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       David Martinez-Gonzalez appeals the 27-month within-guidelines
sentence and three-year term of supervised release imposed following his
guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a),
(b)(2), and the 13-month sentence imposed following the revocation of his
supervised release for another illegal reentry offense. He argues that his new
illegal reentry sentence violates due process because it exceeds the statutory
maximum sentence allowed by § 1326(a). Specifically, he argues that a prior
conviction that enhances a sentence under § 1326(b) must be alleged in the
indictment and proved to a jury. He correctly concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). However, he seeks to
preserve the issue for possible Supreme Court review.
       The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Because Martinez-Gonzalez’s argument 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 judgments are
AFFIRMED. The Government’s alternative motion for an extension of time to
file a brief is DENIED.




       * 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.



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