UNITED STATES v. HERNANDEZ NEVAREZ (2020)

Julian Hernandez-Nevarez appeals the within-guidelines, 37-month sentence imposed following his guilty plea conviction for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. He argues that his sentence was imposed under an unconstitutional sentencing provision because § 1326(b) permits a defendant's sentence to be enhanced even if the fact of a prior conviction is not alleged in the indictment and proved beyond a reasonable doubt. He correctly concedes that his claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he raises the issue to preserve it 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.