Case: 17-10561 Document: 00514261215 Page: 1 Date Filed: 12/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10561 FILED
Summary Calendar December 5, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
CONRADO PARTIDA-CALLES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:16-CR-41-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Conrado Partida-Calles appeals the 24-month above-guidelines sentence
and three-year term of supervised release imposed following his guilty plea
conviction for illegal reentry after deportation. He argues that his sentence
violates due process because it exceeds the statutory maximum sentence of
8 U.S.C. § 1326(a). He concedes that the issue whether his eligibility for a
sentencing enhancement under § 1326(b) must be alleged in the indictment
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10561 Document: 00514261215 Page: 2 Date Filed: 12/05/2017
No. 17-10561
and proved to a jury is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). He seeks to preserve the issue for possible Supreme Court
review because, he argues, subsequent Supreme Court decisions indicate that
the Court may reconsider this issue.
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. Subsequent Supreme Court decisions have not overruled
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014) (considering the effect of Alleyne v. United States, 570 U.S. 99 (2013));
United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007)
(considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)). Thus,
Partida-Calles’s argument is foreclosed.
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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