Filed: Feb. 15, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 17-50711 Document: 00514348987 Page: 1 Date Filed: 02/15/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-50711 FILED Summary Calendar February 15, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAMIRO ORTIZ-MEMBRENO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-536-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CU
Summary: Case: 17-50711 Document: 00514348987 Page: 1 Date Filed: 02/15/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-50711 FILED Summary Calendar February 15, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAMIRO ORTIZ-MEMBRENO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-536-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CUR..
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Case: 17-50711 Document: 00514348987 Page: 1 Date Filed: 02/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50711 FILED
Summary Calendar February 15, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAMIRO ORTIZ-MEMBRENO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-536-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ramiro Ortiz-Membreno appeals the 37-month sentence imposed after
his conviction for illegal reentry after deportation. Ortiz-Membreno contends
that his indictment did not allege that he had a prior conviction and, therefore,
his sentence pursuant to 8 U.S.C. § 1326(b) violated due process by exceeding
the two-year statutory maximum provided by Section 1326(a). He
acknowledges that his argument is foreclosed by Almendarez-Torres v. United
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50711 Document: 00514348987 Page: 2 Date Filed: 02/15/2018
No. 17-50711
States,
523 U.S. 224 (1998), but he seeks to preserve his claim for possible
future review.
The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Summary affirmance is appropriate 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, 1162–63 (5th Cir.
1969).
As Ortiz-Membreno concedes, his sole claim is foreclosed by Almendarez-
Torres. The Supreme Court’s subsequent decisions in Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States,
570 U.S. 99 (2013), did not
overrule Almendarez-Torres. See United States v. Juarez-Duarte,
513 F.3d
204, 211 (5th Cir. 2008); United States v. Wallace,
759 F.3d 486, 497 (5th Cir.
2014). Thus, the Government’s motion for summary affirmance is GRANTED,
and the judgment is AFFIRMED. The Government’s alternative motion for an
extension of time to file a brief is DENIED.
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