USA v. Santos Diaz-Martinez, No. 17-51076 (5th Cir. 2018)

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Case: 17-51076 Document: 00514659498 Page: 1 Date Filed: 09/27/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-51076 Summary Calendar FILED September 27, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. SANTOS ORLANDO DIAZ-MARTINEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:17-CR-1255-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Santos Orlando Diaz-Martinez appeals the 46-month within-guidelines sentence imposed following his guilty plea conviction for illegal reentry after deportation. Raising one issue, Diaz-Martinez argues that because his indictment did not specify the prior felony conviction that formed the basis of his sentencing enhancement, his sentence, imposed under 8 U.S.C. § 1326(b)(1), exceeded the two-year maximum sentence under § 1326(a) and 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-51076 Document: 00514659498 Page: 2 Date Filed: 09/27/2018 No. 17-51076 therefore violated his due process rights. The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. As the Government argues and Diaz-Martinez concedes, the only issue raised on appeal is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See 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). Because the issue is foreclosed, 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 and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file its brief is DENIED. 2

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