United States v. Nunez-Ugarte ( 2021 )

Case: 21-50080 Document: 00515936434 Page: 1 Date Filed: 07/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 13, 2021
No. 21-50080 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Genaro Alberto Nunez-Ugarte,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-338-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam: *
Genaro Alberto Nunez-Ugarte appeals the 37-month prison sentence
imposed following his guilty plea conviction for illegal reentry after
deportation. He argues that his sentence was imposed under an
unconstitutional statute, 8 U.S.C. § 1326(b). He correctly concedes that his
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50080 Document: 00515936434 Page: 2 Date Filed: 07/13/2021
No. 21-50080
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), but 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