United States v. Palacios-Martinez

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   opinion should not be published and is not precedent except under the limited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.




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