Case: 18-50280 Document: 00514696415 Page: 1 Date Filed: 10/24/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-50280 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
October 24, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE ROBERTO GOMEZ-VAZQUEZ, also known as Jose Roberto Vasquez-
Villegas, also known as Jose Roberto Vasquez-Vilegas,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CR-2559-1
Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Jose Roberto Gomez-Vazquez appeals the 57-month within-guidelines
sentence imposed following his guilty plea conviction for attempted illegal
reentry. He argues that his indictment did not allege that he had a prior
conviction and that, therefore his sentence under 8 U.S.C. § 1326(b)(1) violates
his due process rights by exceeding the two-year statutory maximum provided
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50280 Document: 00514696415 Page: 2 Date Filed: 10/24/2018
No. 18-50280
by § 1326(a). He concedes that this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). However, 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 the indictment or found by a jury beyond a
reasonable doubt. This court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See, e.g., 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, Gomez-Vazquez’s argument is foreclosed and
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, and the judgment of the district court is AFFIRMED.
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