# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50257 Summary Calendar
**United States of America,** Plaintiff

— Appellee **,**

versus **Juan Pablo Martinez**

**- Ceballos,**  Defendant

— Appellant **,**
**consolidated with**

**_____________ No. 2**  **1**

**- 50265** 

**_____________ United States of America,**  Plaintiff

— Appellee **,**

versus **Juan Pablo Martinez**

**- Garcia,**  Defendant

— Appellant

**.** United States Court of Appeals Fifth Circuit 

### FILED October 13, 2021

Lyle W. Cayce Clerk Case: 21-50257 Document: 00516052925 Page: 1 Date Filed: 10/13/2021No. 21

- 50257 c/w No. 21

- 50265

2 Appeal s from the United States District Court for the Wester n District of Texas USDC No. 4:20

- CR

- 490

- 1 USDC No. 4:20

- CR

- 435

- 1

Before **Southwick, Oldham,** and **Wilson,** Circuit Judges

. **Per Curiam :**  * Juan Pablo Martinez

- Ceballos appeals the sentence imposed following his guilty

- plea conviction of illegal reentry , as well as the revocation of the term of supervised release he was serving at the time of the offense. Because his brief does not address the validity of the revocation or the revocation sentence, he has abandoned any challenge to them. See Yohey v. Collins , 985 F.2d 222, 224

- 25 (5th Cir. 1993). The sole argument Martinez

- Ceballos raises on appeal is that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)( 1 ) is unconstitutional because the fact of a prior conviction must be charged and proved to a jury beyond a reasonable doubt. He acknowledges this argument to be foreclosed by Almendarez

- Torres v. United States , 523 U.S. 224 (1998), but seeks to preserve the issue for further review. The Government has moved for summary affirmance or, in the alternative, for an extension of time to file a brief

. The Supreme Court held in Almendarez

- Torres that for purposes of a statutory sentencing e nhancement, a prior conviction is not a fact that must be alleged in an indictment or found beyond a reasonable doubt by a jury. 523 U.S. at 239

– 47. This court has held that subsequent Supreme Court

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. Case: 21-50257 Document: 00516052925 Page: 2 Date Filed: 10/13/2021No. 21

- 50257 c/w No. 21

- 50265

3 decisions such as Alleyne v. United States , 570 U.S. 99 (2013), and Apprendi v. New Jersey , 530 U.S. 466 (2000), did not overrule Almendarez

- Torres

. See, e.g. , United States v. Wallace , 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda

- Arrellano , 492 F.3d 624, 625

- 26 (5th Cir. 2007). Therefore, Mart inez

- Ceballos is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). T he Government’s motion for summary affirmance is **GRANTED** , the Government’s alte rnative motion for an extension of time to file a brief is **DENIED AS MOOT**  , and the district court’s judgments are **AFFIRMED**

. Case: 21-50257 Document: 00516052925 Page: 3 Date Filed: 10/13/2021