Case: 21-50432 Document: 00516075093 Page: 1 Date Filed: 10/29/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-50432 October 29, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rigoberto Ortiz-Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:20-CR-1550-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Rigoberto Ortiz-Martinez appeals the sentence of 21 months of
imprisonment with three years of supervised release imposed on his guilty-
plea conviction for illegal reentry. He contends that the enhancement of his
sentence based on a prior conviction pursuant to 8 U.S.C. § 1326(b)(2) is
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50432 Document: 00516075093 Page: 2 Date Filed: 10/29/2021
No. 21-50432
unconstitutional because the fact of a prior conviction must be charged and
proved to a jury beyond a reasonable doubt. While Ortiz-Martinez
acknowledges this argument to be foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), he nevertheless seeks to preserve the issue for
further review. The Government has moved for summary affirmance on the
ground that Ortiz-Martinez’s argument is foreclosed.
The Supreme Court held in Almendarez-Torres that for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found beyond a reasonable doubt by a jury. 523
U.S. at 239-47. We have held that subsequent Supreme Court decisions such
as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey,
530 U.S. 466 (2000), did not overrule Almendarez-Torres. See, e.g., 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). Ortiz-Martinez is thus
correct that his argument is foreclosed. 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 Government’s alternative
motion for an extension of time to file a brief is DENIED AS MOOT, and
the district court’s judgment is AFFIRMED.
2