UNITED STATES v. MORALES MERCADO (2020)

Jose Ricardo Morales-Mercado appeals the 51-month sentence imposed following his guilty plea conviction for being found unlawfully present in the United States after previous deportation. He argues that his sentence was imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, he contends that in order to trigger a sentencing enhancement under § 1326(b), the fact of a prior conviction must be alleged in the indictment and proven to a jury; therefore, he asserts that § 1326(b) is unconstitutional. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but raises the issue to preserve for further possible review. See 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).

The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. Because the issue is foreclosed, 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.