UNITED STATES v. PARRA ROBLES (2021)

Primitivo Parra-Robles appeals the 48-month, above-guidelines sentence of imprisonment imposed following his guilty-plea conviction for illegal reentry after removal from the United States. He contends that his sentence is unconstitutional because his indictment alleged only those facts sufficient for a conviction under 8 U.S.C. § 1326(a) and did not include any allegations of a prior conviction necessary for the § 1326(b)(2) enhancement.

He 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 agrees and has filed an unopposed motion for summary affirmance, and in the alternative, a motion for an extension of time to file a brief.

The parties are correct that the sole issue 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). 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, and the judgment of the district court is AFFIRMED. The Government's alternative motion for an extension of time to file a brief is DENIED AS MOOT.

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Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.