UNITED STATES v. GUILLEN MORALES (2021)

Eleno Guillen-Morales pleaded guilty to illegal reentry after removal, in violation of 8 U.S.C. § 1326. He was sentenced to a 37-month term of imprisonment, to be followed by a three-year term of supervised release.

Raising one issue on appeal, Guillen-Morales argues that the recidivism enhancement under § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and subsequent decisions because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment or found by a jury beyond a reasonable doubt. Guillen-Morales concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the issue for further review. The Government, agreeing that the issue is foreclosed, has filed an unopposed motion for summary affirmance. In the alternative, the Government requests an extension of time to file a brief.

As the Government argues, and Guillen-Morales concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. 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). 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.

FOOTNOTES

FOOTNOTE.  

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.