     Case: 17-10837      Document: 00514403751         Page: 1    Date Filed: 03/27/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-10837                                FILED
                                  Summary Calendar                        March 27, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RENE MARTINEZ-HERNANDEZ, also known as Rene Martinez, also known
as Rene Hernandez Martinez, also known as Jose Isabel Martinez-Aguilar,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-437-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Rene Martinez-Hernandez appeals his conviction and 30-month
sentence for illegal reentry after removal from the United States. He argues
that his sentence exceeded the statutory maximum because the enhanced
penalty provision of 8 U.S.C. § 1326(b) is unconstitutional. He also asserts that
his guilty plea was invalid because he was not admonished that his prior felony



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10837   Document: 00514403751     Page: 2   Date Filed: 03/27/2018


                                No. 17-10837

conviction could not be used to enhance his sentence under § 1326(b) unless it
was submitted to a jury and proved beyond a reasonable doubt.
      However, Martinez-Hernandez has filed an unopposed motion for
summary disposition and a letter brief conceding that these issues are
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
explaining that he has raised the issues only to preserve them for possible
further review. Accordingly, because summary disposition is appropriate, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969),
Martinez-Hernandez’s motion is GRANTED. The district court’s judgment is
AFFIRMED.




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