USA v. Ortiz-Martinez, No. 21-50432 (5th Cir. 2021)
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Case: 21-50432 Document: 00516075093 Page: 1 Date Filed: 10/29/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-50432 Summary Calendar October 29, 2021 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Rigoberto Ortiz-Martinez, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 2:20-CR-1550-1 Before King, Costa, and Ho, Circuit Judges. Per Curiam:* Rigoberto Ortiz-Martinez appeals the sentence of 21 months of imprisonment with three years of supervised release imposed on his guiltyplea conviction for illegal reentry. He contends that the enhancement of his sentence based on a prior conviction pursuant to 8 U.S.C. § 1326(b)(2) is * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-50432 Document: 00516075093 Page: 2 Date Filed: 10/29/2021 No. 21-50432 unconstitutional because the fact of a prior conviction must be charged and proved to a jury beyond a reasonable doubt. While Ortiz-Martinez acknowledges this argument to be foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve the issue for further review. The Government has moved for summary affirmance on the ground that Ortiz-Martinez’s argument is foreclosed. The Supreme Court held in Almendarez-Torres that for purposes of a statutory sentencing enhancement, a prior conviction is not a fact that must be alleged in an indictment or found beyond a reasonable doubt by a jury. 523 U.S. at 239-47. We have held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See, e.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. PinedaArrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Ortiz-Martinez is thus correct that his argument is foreclosed. 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 AS MOOT, and the district court’s judgment is AFFIRMED. 2
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