UNITED STATES v. COLLAZO GONZALEZ (2019)

United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Victor Manuel COLLAZO-GONZALEZ, Defendant-Appellant

No. 18-50755

Decided: April 22, 2019

Before DENNIS, CLEMENT, and OWEN, Circuit Judges. Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee Judy Fulmer Madewell, Bradford W. Bogan, Assistant Federal Public Defenders, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant - Appellant

Victor Manuel Collazo-Gonzalez appeals his 46-month, within-guidelines sentence for illegal reentry following deportation. Because Collazo-Gonzalez’s prior removal from the United States followed felony convictions for possession of methamphetamine and marijuana, his maximum term of imprisonment was increased from two to 10 years. See 8 U.S.C. § 1326(a), (b)(1). He contends that because the indictment did not allege the prior felony convictions, his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Collazo-Gonzalez concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises it to preserve the issue for possible Supreme Court review.

The Government has moved for summary affirmance or, alternatively, for an extension of time to file a brief. Because the sole issue presented is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the motion for summary affirmance is GRANTED. The Government’s alternative motion for an extension of time to file a brief is DENIED. The judgment 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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.