Case: 15-10103 Document: 00513194305 Page: 1 Date Filed: 09/15/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10103
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 15, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ARNULFO GALVAN MIRELES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-109-1
Before HIGGINBOTHAM, DAVIS and GRAVES, Circuit Judge.
PER CURIAM: *
Arnulfo Galvan Mireles (Galvan) appeals the sentence imposed following
his guilty plea conviction for illegal reentry after removal from the United
States. For the first time on appeal, Galvan argues that, following Alleyne v.
United States, 133 S. Ct. 2151 (2013), any fact that increases the range of
reasonable sentences must be found by a jury beyond a reasonable doubt. He
asserts that the district court’s factual finding—that he had a serious criminal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10103 Document: 00513194305 Page: 2 Date Filed: 09/15/2015
No. 15-10103
history, that his drinking posed a serious danger to others, and that he had
undertaken inappropriate contact with a victim in a prior case—violated his
constitutional rights because it likely affected the range of reasonable
punishments.
As Galvan did not raise this issue in the district court, we review it for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
show plain error, Galvan must show a forfeited error that is clear or obvious
and that affects his substantial rights. See id. If he makes such a showing, we
have the discretion to correct the error, but should do so only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
The Government has moved for summary affirmance on the ground that
the sole issue raised by Galvan is foreclosed. In United States v. Tuma, 738
F.3d 681, 693 (5th Cir. 2013), the defendant argued that Alleyne required that
any fact that increased his minimum sentence, including facts that raised his
guidelines range, must be found by a jury beyond a reasonable doubt. This
court rejected the argument, holding that Alleyne applied “only to facts that
increase a statutory mandatory minimum sentence.” Id. In the present case,
Galvan’s crime of conviction had no statutory minimum sentence of
imprisonment, and no judicially found facts increased the statutory minimum
sentence. See 8 U.S.C § 1326(b). Accordingly, as Galvan concedes, his
argument is foreclosed. See Tuma, 738 F.3d at 693.
The Government’s motion for summary affirmance is GRANTED. The
Government’s alternative motion to extend the time to file its brief is DENIED.
AFFIRMED.
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