United States v. Carlos Tobar-Torres ( 2018 )

Case: 18-40224 Document: 00514732277 Page: 1 Date Filed: 11/21/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-40224
Fifth Circuit
FILED
Summary Calendar November 21, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
CARLOS TOBAR-TORRES, also known as Carlos Omar Tovar-Torres,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:17-CR-511-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Carlos Tobar-Torres appeals the 27-month guidelines sentence and 3-
year term of supervised release imposed following his guilty plea conviction for
illegal reentry. He argues that his sentence violates due process because it
exceeds the statutory maximum sentence of 8 U.S.C. § 1326(a). He concedes
that the issue whether his eligibility for a sentencing enhancement under
§ 1326(b) must be alleged in the indictment and proved to a jury is foreclosed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40224 Document: 00514732277 Page: 2 Date Filed: 11/21/2018
No. 18-40224
by Almendarez-Torres v. United States, 523 U.S. 224 (1998). However, he seeks
to preserve the issue for possible Supreme Court review because, he argues,
subsequent Supreme Court decisions indicate that the Court may reconsider
this issue.
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. This court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014) (considering the effect of Alleyne v. United
States, 570 U.S. 99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624,
625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530
U.S. 466 (2000)). Thus, Tobar-Torres’s argument is foreclosed.
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.
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