IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11263

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO LUIS MARTINEZ-PAZ, also known as Eduardo Martinez, also 

known as Eduardo Martinez de Paz, also known as Oscar Villalta,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CR-592-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.

PER CURIAM:*

Eduardo Luis Martinez-Paz appeals his conviction and sentence for 

illegal reentry into the United States after a previous removal. The district 

court sentenced him to 45 months of imprisonment and a one-year term of 

supervised release.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2019

Lyle W. Cayce

Clerk

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No. 18-11263

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Martinez-Paz argues that the district court erred in entering a judgment 

against him under 8 U.S.C. § 1326(b)(2) because the district court sustained 

his objection to the presentence report’s conclusion that he was subject to a 20-

year maximum term of imprisonment. The Government moves to dismiss his 

appeal on this issue as moot because, during the pendency of the appeal, this 

court remanded the matter back to the district court for correction of the error. 

The district court indeed corrected the error by entering an amended judgment 

to reflect that Martinez-Paz was sentenced under § 1326(b)(1). Therefore, the 

relief requested by Martinez-Paz has already been granted, and we grant the 

Government’s motion to dismiss the appeal in part as moot.

In addition, Martinez-Paz challenges his 45-month sentence under 

§ 1326(b)(1). He contends his sentence is unconstitutional because it violates 

principles stated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne 

v. United States, 570 U.S. 99 (2013). He acknowledges that this argument is 

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he 

wishes to preserve the issue for further review due to indications by the 

Supreme Court that it may reconsider that decision. The Government has filed 

an unopposed motion for summary affirmance in light of Almendarez-Torres.

Summary affirmance is appropriate if “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). In Almendarez-Torres, 523 U.S. at 239-47, the Supreme 

Court held that for purposes of a statutory sentencing enhancement, a prior 

conviction is not a fact that must be alleged in the indictment or found by a 

jury beyond a reasonable doubt. We have held that subsequent Supreme Court 

decisions did not overrule Almendarez-Torres. See United States v. Wallace, 

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759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 

624, 625-26 (5th Cir. 2007). Thus, Martinez-Paz’s argument is foreclosed.

The Government’s motions to dismiss the appeal in part as moot and for 

summary affirmance are GRANTED. Its alternative motion for an extension 

of time to file a brief is DENIED. Martinez-Paz’s appeal is DISMISSED IN 

PART as moot, and the amended judgment of the district court is AFFIRMED.

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