UNITED STATES v. CONTRERAS TORRES (2019)

United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Sandra Sugey CONTRERAS-TORRES, Defendant-Appellant

No. 19-50393

Decided: September 27, 2019

Before JOLLY, JONES, and SOUTHWICK, 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 Bradford W. Bogan, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Judy Fulmer Madewell, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant

Sandra Sugey Contreras-Torres appeals the 24-month sentence imposed following her guilty plea conviction for being found unlawfully present in the United States after previous deportation. She argues that her sentence was imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, she contends that in order to trigger a sentencing enhancement under Section 1326(b), the fact of a prior conviction must be alleged in the indictment and proven to a jury; therefore, she asserts that Section 1326(b) is unconstitutional. She correctly concedes that her argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but raises the issue to preserve 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 as moot, 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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.