UNITED STATES v. MARTINEZ FIGUEROA (2020)

Miguel Martinez-Figueroa appeals his within-guidelines sentence of 30 months of imprisonment and three years of supervised release, imposed following his guilty plea conviction for illegal reentry after removal. He argues that the enhancement of his sentence based on a prior conviction pursuant to 8 U.S.C. § 1326(b)(2), which increased the statutory maximum term of imprisonment to 20 years and the statutory maximum term of supervised release to three years, is unconstitutional because his prior conviction is treated as a sentencing factor rather than an element of the offense that must be alleged in the indictment and found by a jury beyond a reasonable doubt. He correctly concedes that the issue 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 the issue for possible Supreme Court review. The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief.

Because the issue is foreclosed, see United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008), 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 Government's alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.

FOOTNOTES

FOOTNOTE.  

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.