     Case: 18-11263      Document: 00515162909         Page: 1    Date Filed: 10/17/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                    No. 18-11263                          FILED
                                  Summary Calendar                 October 17, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDUARDO LUIS MARTINEZ-PAZ, also known as Eduardo Martinez, also
known as Eduardo Martinez de Paz, also known as Oscar Villalta,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-592-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Eduardo Luis Martinez-Paz appeals his conviction and sentence for
illegal reentry into the United States after a previous removal. The district
court sentenced him to 45 months of imprisonment and a one-year term of
supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11263    Document: 00515162909     Page: 2   Date Filed: 10/17/2019


                                 No. 18-11263

      Martinez-Paz argues that the district court erred in entering a judgment
against him under 8 U.S.C. § 1326(b)(2) because the district court sustained
his objection to the presentence report’s conclusion that he was subject to a 20-
year maximum term of imprisonment. The Government moves to dismiss his
appeal on this issue as moot because, during the pendency of the appeal, this
court remanded the matter back to the district court for correction of the error.
The district court indeed corrected the error by entering an amended judgment
to reflect that Martinez-Paz was sentenced under § 1326(b)(1). Therefore, the
relief requested by Martinez-Paz has already been granted, and we grant the
Government’s motion to dismiss the appeal in part as moot.
      In addition, Martinez-Paz challenges his 45-month sentence under
§ 1326(b)(1). He contends his sentence is unconstitutional because it violates
principles stated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne
v. United States, 570 U.S. 99 (2013). He acknowledges that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
wishes to preserve the issue for further review due to indications by the
Supreme Court that it may reconsider that decision. The Government has filed
an unopposed motion for summary affirmance in light of Almendarez-Torres.
      Summary affirmance is appropriate if “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). In Almendarez-Torres, 523 U.S. at 239-47, the Supreme
Court held that for purposes of a statutory sentencing enhancement, a prior
conviction is not a fact that must be alleged in the indictment or found by a
jury beyond a reasonable doubt. We have held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See United States v. Wallace,




                                       2
    Case: 18-11263   Document: 00515162909     Page: 3   Date Filed: 10/17/2019


                                No. 18-11263

759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d
624, 625-26 (5th Cir. 2007). Thus, Martinez-Paz’s argument is foreclosed.
      The Government’s motions to dismiss the appeal in part as moot and for
summary affirmance are GRANTED. Its alternative motion for an extension
of time to file a brief is DENIED. Martinez-Paz’s appeal is DISMISSED IN
PART as moot, and the amended judgment of the district court is AFFIRMED.




                                      3
