United States v. Ortiz-Martinez

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   opinion should not be published and is not precedent except under the limited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




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