UNITED STATES v. BETANCOURT CARRILLO (2019)

Ernesto Betancourt-Carrillo appeals his 30-month below-guideline sentence imposed following his guilty plea to illegal reentry in violation of 8 U.S.C. § 1326. He argues that his sentence violates his due process rights and his Sixth Amendment right to a jury trial because it exceeds the statutory maximum charged and the maximum sentence available based on the facts that he admitted at rearraignment. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). However, he seeks to preserve the issue for possible Supreme Court review because he argues that subsequent Supreme Court decisions indicate that the Court may reconsider this issue. The Government has moved for summary affirmance, urging that the issue is foreclosed.

In Almendarez-Torres, 523 U.S. at 239-47, 118 S.Ct. 1219, 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. This court has held that subsequent Supreme Court decisions 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). Thus, Betancourt-Carrillo’s argument is foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the Government’s unopposed motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.