Case: 22-50859 Document: 00516696919 Page: 1 Date Filed: 03/31/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-50859 FILED March 31, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Elmer Alexander Martinez-Amaya, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-262-1 ______________________________ Before King, Higginson, and Willett, Circuit Judges.

Per Curiam: * Elmer Alexander Martinez-Amaya appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1). In his sole issue on appeal, Martinez-Amaya contends that § 1326(b) is unconstitutional because it permits a sentence above the

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50859 Document: 00516696919 Page: 2 Date Filed: 03/31/2023

No. 22-50859

otherwise-applicable statutory maximum based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt.

He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and conceding that this issue is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Martinez-Amaya’s motion is GRANTED, and the district court’s judgment is AFFIRMED.