UNITED STATES v. ALVAREZ MORENO (2021)

Vicente Alvarez-Moreno appeals his conviction for illegal reentry into the United States. He argues that the enhanced sentencing range in 8 U.S.C. § 1326(b) is unconstitutional because a prior conviction is an element of the offense that must be alleged in the indictment or found by a jury beyond a reasonable doubt. He concedes that the 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 wishes to preserve it for further review.¹ The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed by Almendarez-Torres. Alternately, the Government requests an extension of time to file its brief.

As he concedes, Alvarez-Moreno's sole appellate argument is foreclosed by Almendarez-Torres. See Apprendi v. New Jersey, 530 U.S. 466, 476, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. 1219; United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Because the Government's position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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.

FOOTNOTES

FOOTNOTE.  

1.   Alvarez-Moreno also filed an appeal from the revocation of his supervised release. However, he has abandoned any challenge to his revocation by failing to brief it on appeal. See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996)

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.