UNITED STATES v. CONDE HERRERA (2019)

Abraham Conde-Herrera appeals his above-guidelines sentence of 31 months of imprisonment and two years of supervised release on his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that the district court: (1) violated Federal Rule of Criminal Procedure 11 and erroneously accepted his involuntary guilty plea because he was not admonished that his prior felony conviction was an essential element of the offense that must be proved beyond a reasonable doubt and (2) erroneously sentenced him under § 1326(b)(1) because that enhanced sentencing provision is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and subsequent decisions. Conde-Herrera concedes that his arguments are unpreserved and subject to review for plain error. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).

The Government has filed an unopposed motion for summary affirmance arguing that Conde-Herrera’s arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As Conde-Herrera concedes that his arguments are foreclosed by this decision, 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 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.