UNITED STATES v. ORTIZ MEMBRENO (2018)

Ramiro Ortiz-Membreno appeals the 37-month sentence imposed after his conviction for illegal reentry after deportation. Ortiz-Membreno contends that his indictment did not allege that he had a prior conviction and, therefore, his sentence pursuant to 8 U.S.C. § 1326(b) violated due process by exceeding the two-year statutory maximum provided by Section 1326(a). He acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve his claim for possible future review.

The Government has moved for summary affirmance or, alternatively, an extension of time to file a brief. Summary affirmance is appropriate when, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case[.]” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162–63 (5th Cir. 1969).

As Ortiz-Membreno concedes, his sole claim is foreclosed by Almendarez-Torres. The Supreme Court’s subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), did not overrule Almendarez-Torres. See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Thus, the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.