UNITED STATES v. ESPINOZA ESPINOZA (2020)

Hermenegildo Margarito Espinoza Espinoza argues that his guilty plea was involuntary because the district court failed to advise him at rearraignment that his prior felony conviction was an essential element of his illegal reentry offense under 8 U.S.C. § 1326(b)(1). He also contends that his sentence under § 1326(b)(1) is unconstitutional because it is based on facts neither alleged in his indictment nor proven to a jury beyond a reasonable doubt.

As Espinoza Espinoza concedes, his arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.