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Case: 20-50006 Document: 00515504234 Page: 1 Date Filed: 07/27/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 20-50006 July 27, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KEVIN WILMAR GARCIA-VASQUEZ, also known as Kevin Wilmar Portillo- Garcia, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 4:19-CR-603-1 Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges. PER CURIAM: * Kevin Wilmar Garcia-Vasquez appeals the 27-month sentence imposed following his guilty plea conviction for being found unlawfully in the United States following a previous removal. He argues that the recidivism enhancement under 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 20-50006 Document: 00515504234 Page: 2 Date Filed: 07/27/2020 No. 20-50006 that are neither alleged in the indictment or found by a jury beyond a reasonable doubt. Garcia-Vasquez correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224(1998), but he 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; and, the judgment of the district court is AFFIRMED. 2
Document Info
Docket Number: 20-50006
Filed Date: 7/27/2020
Precedential Status: Non-Precedential
Modified Date: 7/28/2020