Case: 17-51076 Document: 00514659498 Page: 1 Date Filed: 09/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-51076
FILED
September 27, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SANTOS ORLANDO DIAZ-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CR-1255-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Santos Orlando Diaz-Martinez appeals the 46-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry after
deportation. Raising one issue, Diaz-Martinez argues that because his
indictment did not specify the prior felony conviction that formed the basis of
his sentencing enhancement, his sentence, imposed under 8 U.S.C.
§ 1326(b)(1), exceeded the two-year maximum sentence under § 1326(a) and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-51076 Document: 00514659498 Page: 2 Date Filed: 09/27/2018
No. 17-51076
therefore violated his due process rights. The Government has filed an
unopposed motion for summary affirmance and, alternatively, seeks an
extension of time to file its brief.
As the Government argues and Diaz-Martinez concedes, the only issue
raised on appeal 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).
Because the issue 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 judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.
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