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United States v. Miguel Olvera-Cruz ( 2018 )


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  •      Case: 18-10605      Document: 00514717354         Page: 1    Date Filed: 11/08/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10605                             FILED
Summary Calendar                   November 8, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ANGEL OLVERA-CRUZ, also known as Miguel Angel Cruz,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-212-1
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Miguel Angel Olvera-Cruz appeals the 27-month within-Guidelines
sentence imposed after he pleaded guilty to illegal reentry, 8 U.S.C. § 1326. He
challenges this sentence as unconstitutional because it exceeds the statutory
maximum contained in § 1326(a), and the prior conviction used to increase his
sentence under § 1326(b) was not alleged in the indictment. Olvera-Cruz
concedes that this argument is foreclosed by Almendarez-Torres v. United
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10605      Document: 00514717354   Page: 2   Date Filed: 11/08/2018
No. 18-10605
States,
    523 U.S. 224 
    (1998).     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, the Supreme Court held that, for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in the indictment or found by a jury beyond a reasonable doubt.
    Id. at 239–47. 
    This court has held that subsequent Supreme Court decisions did
not overrule Almendarez-Torres. See, e.g., 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, Olvera-Cruz’s argument is foreclosed, and summary
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    ,
1162 (5th Cir. 1969).
Accordingly, the Government’s unopposed motion for summary
affirmance is GRANTED, the alternative motion for an extension of time is
DENIED, and the judgment of the district court is AFFIRMED.
2