USA v. Martin-Andres, No. 22-50498 (5th Cir. 2022)
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Case: 22-50498 Document: 00516552953 Page: 1 Date Filed: 11/21/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50498 Summary Calendar FILED November 21, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Marcos Juan Martin-Andres, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-37-1 Before Jolly, Jones, and Ho, Circuit Judges. Per Curiam:* Marcos Juan Martin-Andres appeals his conviction for illegal reentry and his sentence of 46 months of imprisonment and three years of supervised release. He argues for the first time on appeal that his sentence exceeds the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50498 Document: 00516552953 Page: 2 Date Filed: 11/21/2022 No. 22-50498 statutory maximum because the enhanced penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional. He has filed an unopposed motion for summary disposition and a letter brief correctly conceding that this issue is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Martin-Andres states that he raised the issue only to preserve it for possible further review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Martin-Andres’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2
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