UNITED STATES v. CORTES (2019)

Gerardo Tajonar Cortes appeals the 37-month within-guidelines sentence imposed following his guilty plea conviction for illegal reentry after removal from the United States. He argues that his indictment alleged only those facts sufficient for a conviction under 8 U.S.C. § 1326(a) and did not include any allegations of a prior conviction necessary for a sentence under § 1326(b)(1).

According to Cortes, his sentence under § 1326(b)(1) violates his due process rights by exceeding the two-year statutory maximum imposed by § 1326(a). He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the issue for further review. The Government filed an unopposed motion for summary affirmance agreeing that the issue is foreclosed and in the alternative, a motion for an extension of time to file a brief.

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) (considering the effect of Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Thus, Cortes’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 motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.