Case: 19-11248      Document: 00515457511         Page: 1    Date Filed: 06/18/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-11248
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 18, 2020
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

TOMAS MARTINEZ-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-168-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Tomas Martinez-Rodriguez pleaded guilty to illegal reentry by a
deported alien. Because Martinez-Rodriguez’s prior deportation followed his
conviction for a felony, he was subject to an enhanced statutory maximum
sentence of ten years and an enhanced statutory supervised release range of
not more than three years. See 8 U.S.C § 1326(b)(1); 18 U.S.C. § 3583(b)(2).
The district court sentenced him within the guidelines range to ten months of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11248       Document: 00515457511    Page: 2   Date Filed: 06/18/2020


                                   No. 19-11248

imprisonment, followed by two years of supervised release.              Martinez-
Rodriguez was released from custody in March of 2020 but remains on
supervised release. See United States v. Lares-Meraz, 

, 355 (5th
Cir. 2006).
         In this appeal, Martinez-Rodriguez contends that the district court erred
by sentencing him beyond the statutory maximum permitted by § 1326(a)
based on the fact of a prior felony conviction that was neither pleaded in the
indictment, admitted by him, or found by a jury beyond a reasonable doubt.
He also argues that his guilty plea was invalid because he was not admonished
that the prior-felony provision of § 1326(b)(1) could not be used to enhance his
sentence unless his prior felony conviction was submitted to a jury and proved
beyond a reasonable doubt. He concedes that these issues are foreclosed by
Almendarez-Torres v. United States, 

(1998), but he seeks to
preserve the issues for future review. The Government moves for summary
affirmance or, alternatively, for an extension of time in which to file a merits
brief.
         The parties are correct that Martinez-Rodriguez’s arguments are clearly
foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano, 

, 625 (5th Cir. 2007); United States v. Wallace, 

, 497 (5th
Cir. 2014); see generally Groendyke Transp., Inc. v. Davis, 

, 1162
(5th Cir. 1969).       Accordingly, the motion for summary affirmance is
GRANTED. The Government’s alternative motion for an extension of time is
DENIED. The judgment is AFFIRMED.




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