United States v. Martinez-Sario

United States Court of Appeals
for the Fifth Circuit

No. 20-50370
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Benedicto Martinez-Sario, also known as Benedicto Sario-
Martinez,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-92-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Benedicto Martinez-Sario appeals his sentence of 14 months of
imprisonment and three years of supervised release following his guilty plea
to illegal reentry into the United States after deportation. He contends that

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
November 6, 2020

Lyle W. Cayce
Clerk
Case: 20-50370 Document: 00515629731 Page: 1 Date Filed: 11/06/2020

No. 20-50370
2
8 U.S.C. § 1326(b) is unconstitutional because it permits a sentence above
the otherwise-applicable statutory maximum, based on facts that are neither
alleged in the indictment nor found by a jury beyond a reasonable doubt.
While Martinez-Sario acknowledges this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless
seeks to preserve it for possible Supreme Court review.
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 the indictment or found by a jury beyond a reasonable doubt.
523 U.S. at 239-47. This court has 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
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). Thus, Martinez-
Sario is correct that his argument is foreclosed, and summary affirmance is
appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).
The Government’s motion for summary affirmance is GRANTED,
the district court’s judgment is AFFIRMED, and the Government’s
alternative motion for an extension of time to file a brief is DENIED as
moot.

Case: 20-50370 Document: 00515629731 Page: 2 Date Filed: 11/06/2020