USA v. Martin Barcenas-Patino, No. 17-50156 (5th Cir. 2017)

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Case: 17-50156 Document: 00514283331 Page: 1 Date Filed: 12/21/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-50156 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 21, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARTIN BARCENAS-PATINO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-567-1 Before JOLLY, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Martin Barcenas-Patino appeals his sentence of 48 months of imprisonment and three years of supervised release for illegal reentry after deportation. He argues that the district court erroneously determined that his sentence was subject to an enhancement under 8 U.S.C. § 1326(b). He asserts that his indictment did not allege that he had a prior conviction and that, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-50156 Document: 00514283331 Page: 2 Date Filed: 12/21/2017 No. 17-50156 therefore, the enhancement violated his due process rights because his sentence exceeded the statutory maximum. The Government has filed an unopposed motion for summary affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224 (1998), forecloses Barcenas-Patino’s argument. Barcenas-Patino concedes that his argument was rejected in Almendarez-Torres and explains that he raises it to preserve it for further review; thus, 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 judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2

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