USA v. Victor Martinez-Ramirez


UNPUBLISHED OPINION FILED. [16-10870 Affirmed ] Judge: PEH , Judge: ECP , Judge: CH Mandate pull date is 04/07/2017 for Appellant Victor Martinez-Ramirez; granting motion for summary affirmance filed by Appellee USA [8386243-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8386243-3] [16-10870]

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Case: 16-10870 Document: 00513915851 Page: 1 Date Filed: 03/17/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-10870 Summary Calendar FILED March 17, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. VICTOR MARTINEZ-RAMIREZ, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15-CR-275-1 Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. PER CURIAM: * Victor Martinez-Ramirez pleaded guilty to one count of being illegally present in the United States following deportation. The district court sentenced Martinez-Ramirez within the applicable guidelines range to 46 months of imprisonment, to be followed by a three-year term of supervised release. In his only argument on appeal, Martinez-Ramirez asserts that because the indictment did not allege his prior aggravated felony conviction, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-10870 Document: 00513915851 Page: 2 Date Filed: 03/17/2017 No. 16-10870 his sentence, which exceeded the two-year statutory maximum set forth in 8 U.S.C. § 1326(a), constituted a violation of his due process rights. He concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he maintains that the reasoning of this case has been called into question by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013). The Government has filed a motion for a summary affirmance or, alternatively, for an extension of time to file a merits brief. Summary affirmance is proper when, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). As Martinez-Ramirez concedes, his due process argument is foreclosed by Almendarez-Torres. Although Apprendi and Alleyne require that facts increasing the statutory maximum or minimum sentence must be submitted to a jury and proved beyond a reasonable doubt, they have preserved an exception for prior convictions. Alleyne, 133 S. Ct. at 2160-64 & n.1; Apprendi, 530 U.S. at 489-90. 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. 2

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