Case: 17-50156 Document: 00514283331 Page: 1 Date Filed: 12/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50156
Fifth Circuit
Summary Calendar
FILED
December 21, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARTIN BARCENAS-PATINO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-567-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Martin Barcenas-Patino appeals his sentence of 48 months of
imprisonment and three years of supervised release for illegal reentry after
deportation. He argues that the district court erroneously determined that his
sentence was subject to an enhancement under 8 U.S.C. § 1326(b). He asserts
that his indictment did not allege that he had a prior conviction and that,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50156 Document: 00514283331 Page: 2 Date Filed: 12/21/2017
No. 17-50156
therefore, the enhancement violated his due process rights because his
sentence exceeded the statutory maximum.
The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Barcenas-Patino’s argument. Barcenas-Patino concedes that
his argument was rejected in Almendarez-Torres and explains that he raises it
to preserve it for further review; thus, 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. The judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.
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