USA v. Rene Martinez-Hernandez, No. 17-10837 (5th Cir. 2018)

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Case: 17-10837 Document: 00514403751 Page: 1 Date Filed: 03/27/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-10837 Summary Calendar United States Court of Appeals Fifth Circuit FILED March 27, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RENE MARTINEZ-HERNANDEZ, also known as Rene Martinez, also known as Rene Hernandez Martinez, also known as Jose Isabel Martinez-Aguilar, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-437-1 Before REAVLEY, PRADO, and GRAVES, Circuit Judges. PER CURIAM: * Rene Martinez-Hernandez appeals his conviction and 30-month sentence for illegal reentry after removal from the United States. He argues that his sentence exceeded the statutory maximum because the enhanced penalty provision of 8 U.S.C. § 1326(b) is unconstitutional. He also asserts that his guilty plea was invalid because he was not admonished that his prior felony 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-10837 Document: 00514403751 Page: 2 Date Filed: 03/27/2018 No. 17-10837 conviction could not be used to enhance his sentence under § 1326(b) unless it was submitted to a jury and proved beyond a reasonable doubt. However, Martinez-Hernandez has filed an unopposed motion for summary disposition and a letter brief conceding that these issues are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and explaining that he has raised the issues only to preserve them for possible further review. Accordingly, because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Martinez-Hernandez’s motion is GRANTED. The district court’s judgment is AFFIRMED. 2

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