UNITED STATES v. FERNANDEZ VARGAS (2020)

Jose Hilario Fernandez-Vargas appeals his 48-month, within guidelines range sentence for illegal reentry by a deported alien. Fernandez-Vargas contends that his sentence violates the Fifth and Sixth Amendments insofar as he was sentenced beyond the two-year maximum statutory sentence of 8 U.S.C. § 1326(a) based on a prior felony conviction that was not listed in the indictment, admitted by him, or found by a jury beyond a reasonable doubt. He concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for future review. The Government moves for summary affirmance or, alternatively, for an extension of time in which to file a merits brief.

The parties are correct that Fernandez-Vargas’s argument is clearly foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); see generally 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 is DENIED. The judgment 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.