United States v. Jose Medina-Avalos , 714 F. App'x 434 ( 2018 )


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  •      Case: 17-50284      Document: 00514379494         Page: 1    Date Filed: 03/09/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 17-50284                               FILED
    Summary Calendar                         March 9, 2018
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JOSE LUIS MEDINA-AVALOS,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 2:16-CR-1108-1
    Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
    PER CURIAM: *
    Jose Luis Medina-Avalos appeals the 77-month sentence imposed after
    his guilty plea conviction for illegal reentry after deportation. Medina-Avalos
    argues that 8 U.S.C. § 1326(b)(2) is unconstitutional because he was sentenced
    based on a prior conviction that was not charged in his indictment. He reasons
    that his sentence should have been no greater than the two-year statutory
    maximum provided under Section 1326(a).
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50284    Document: 00514379494     Page: 2   Date Filed: 03/09/2018
    No. 17-50284
    Acknowledging that his argument is foreclosed by Almendarez-Torres v.
    United States, 
    523 U.S. 224
    (1998), Medina-Avalos contends that the Supreme
    Court has questioned that ruling in Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), and Alleyne v. United States, 
    570 U.S. 99
    (2013). He therefore wishes
    to preserve his claim for possible future review.
    The Government has moved for summary affirmance or, alternatively,
    an extension of time to file a brief. Summary affirmance is appropriate when,
    among other instances, “the position of one of the parties is clearly right as a
    matter of law so that there can be no substantial question as to the outcome of
    the case.” Groendyke Transp., Inc. v. Davis, 
    406 F.2d 1158
    , 1162 (5th Cir.
    1969).
    As Medina-Avalos concedes, his sole claim is foreclosed by Almendarez-
    Torres. Apprendi and Alleyne did not overrule Almendarez-Torres. United
    States v. Wallace, 
    759 F.3d 486
    , 497 (5th Cir. 2014); United States v. Juarez-
    Duarte, 
    513 F.3d 204
    , 211 (5th Cir. 2008).
    In light of the foregoing, the Government’s motion for summary
    affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s
    alternative motion for an extension of time to file a brief is DENIED.
    2