UNITED STATES v. GUEVARA GUEVARA (2018)

Eliseo Guevara-Guevara pleaded guilty to illegal reentry into the United States and was sentenced to 48 months of imprisonment and three years of supervised release. On appeal, he argues that his indictment did not allege that he had a prior conviction, and therefore, the district court’s sentence, imposed under 8 U.S.C. § 1326(b) and in excess of the statutory maximum sentence under § 1326(a), violated his due process rights.

The Government has filed an unopposed motion for summary affirmance in lieu of filing an appellate brief, or, alternatively an extension of time to file a brief, because Guevara-Guevara’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As Guevara-Guevara concedes that his argument is foreclosed and is raised only to preserve it for further review, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED. The Government’s alternative motion for an extension of time to file its brief is DENIED as unnecessary. The district court’s judgment is AFFIRMED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.