Case: 21-40492 Document: 00516149271 Page: 1 Date Filed: 12/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-40492 December 30, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ernesto Palacios-Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:20-CR-112-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Ernesto Palacios-Martinez pleaded guilty to
illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1).1
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
1
Palacios-Martinez pleaded guilty pursuant to a plea agreement containing a
waiver of appellate rights. Because the only claim Palacios-Martinez presents on appeal is
foreclosed by binding precedent, we do not reach the enforceability of the waiver.
Case: 21-40492 Document: 00516149271 Page: 2 Date Filed: 12/30/2021
No. 21-40492
The district court sentenced Palacios-Martinez to 63 months imprisonment
and two years supervised release—a within-guidelines sentence. Palacios-
Martinez appeals, challenging the constitutionality of the sentence
enhancement provisions of § 1326(b)(1) and (b)(2), on their face and as
applied to him, based on Apprendi v. New Jersey, 530 U.S. 466 (2000). His
primary contention is that the required elements of the increased statutory
maximum sentence afforded by (b)(2) were not charged in the indictment or
proven to a jury beyond a reasonable doubt. He acknowledges, however, that
his claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See, e.g., United States v. Murillo-Portales, 857 F. App’x 827, 828 (5th
Cir. 2021) (unpublished).
Palacios-Martinez’s sole claim on appeal is foreclosed by Almendarez-
Torres, so the judgment of the district court is AFFIRMED.
2