United States v. Hermenegildo Espinoza ( 2020 )

Case: 20-20028 Document: 00515484525 Page: 1 Date Filed: 07/10/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 20-20028 July 10, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERMENEGILDO MARGARITO ESPINOZA ESPINOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-437-1
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Hermenegildo Margarito Espinoza Espinoza argues that his guilty plea
was involuntary because the district court failed to advise him at
rearraignment that his prior felony conviction was an essential element of his
illegal reentry offense under 8 U.S.C. § 1326(b)(1). He also contends that his
sentence under § 1326(b)(1) is unconstitutional because it is based on facts
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-20028 Document: 00515484525 Page: 2 Date Filed: 07/10/2020
No. 20-20028
neither alleged in his indictment nor proven to a jury beyond a reasonable
doubt.
As Espinoza Espinoza concedes, his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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). Thus, 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, and the judgment of the district court is AFFIRMED.
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