United States v. Martinez-Figueroa

United States Court of Appeals
for the Fifth Circuit

No. 20-10647
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Miguel Martinez-Figueroa,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-339-1

Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Miguel Martinez-Figueroa appeals his within-guidelines sentence of
30 months of imprisonment and three years of supervised release, imposed
following his guilty plea conviction for illegal reentry after removal. He
argues that the enhancement of his sentence based on a prior conviction

*
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opinion should not be published and is not precedent except under the limited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
December 22, 2020

Lyle W. Cayce
Clerk
Case: 20-10647 Document: 00515682415 Page: 1 Date Filed: 12/22/2020

No. 20-10647
2
pursuant to 8 U.S.C. § 1326(b)(2), which increased the statutory maximum
term of imprisonment to 20 years and the statutory maximum term of
supervised release to three years, is unconstitutional because his prior
conviction is treated as a sentencing factor rather than an element of the
offense that must be alleged in the indictment and found by a jury beyond a
reasonable doubt. He correctly concedes that the issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve the issue for possible Supreme Court review. The Government has
filed an unopposed motion for summary affirmance and, alternatively, seeks
an extension of time to file its brief.
Because the issue is foreclosed, see United States v. Wallace, 759 F.3d
486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06
(5th Cir. 2008), 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 Government’s alternative motion for an extension of time
to file a brief is DENIED, and the judgment of the district court is
AFFIRMED.
Case: 20-10647 Document: 00515682415 Page: 2 Date Filed: 12/22/2020