UNITED STATES v. RODRIGUEZ RAMIREZ (2020)

Abdias Rodriguez-Ramirez appeals his within-guidelines sentence of 16 months of imprisonment and three years of supervised release imposed following his guilty-plea conviction for illegal reentry. He asserts that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which increased the maximum term of imprisonment to 20 years and the maximum term of supervised release to three years, is unconstitutional because of the treatment of the provision as a sentencing factor rather than as an element of the offense that must be alleged in the indictment and proved to a jury beyond a reasonable doubt.

As Rodriguez-Ramirez concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Thus, 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 a brief is DENIED, and the judgment of the district court is AFFIRMED.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.