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United States v. Jesus Villarreal-Ramirez ( 2020 )


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  •      Case: 19-11286      Document: 00515478029         Page: 1    Date Filed: 07/06/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-11286                                FILED
Summary Calendar                           July 6, 2020
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS VILLARREAL-RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-170-1
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Jesus Villarreal-Ramirez appeals his within-guidelines sentence of 57
months in prison and two years of supervised release, imposed following his
guilty plea conviction for illegal reentry after removal. He argues that the
enhancement of his sentence based on a prior conviction pursuant to 8 U.S.C.
§ 1326(b)(2), which increased the statutory maximum term of imprisonment to
20 years and the statutory maximum term of supervised release to three years,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11286   Document: 00515478029     Page: 2   Date Filed: 07/06/2020
No. 19-11286
is unconstitutional because his prior conviction is treated as a sentencing
factor rather than an element of the offense that must be alleged in the
indictment and found by a jury beyond a reasonable doubt. He concedes that
the issue is foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224 
    (1998), but he seeks to preserve the issue for possible Supreme Court review
because, he argues, subsequent decisions indicate that the Supreme Court may
reconsider its holding in Almendarez-Torres.     The Government moves for
summary affirmance, urging that Villarreal-Ramirez’s argument is foreclosed.
The parties are correct that Villarreal-Ramirez’s argument is foreclosed
by Almendarez-Torres. See United States v. Wallace,
    759 F.3d 486
    , 497 (5th
Cir. 2014); United States v. Rojas-Luna,
    522 F.3d 502
    , 505–06 (5th Cir. 2008).
Accordingly, the Government’s motion for summary affirmance is GRANTED,
see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969), 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.
2