Case: 18-11073 Document: 00515013730 Page: 1 Date Filed: 06/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-11073 June 27, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRES HERRERA-SEGOVIA, also known as Juan Velazquez-Rivera, also known
as Jaime Garcia-Zapata,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-421-1
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Andres Herrera-Segovia appeals the three-year terms of imprisonment
and supervised release imposed after he pleaded guilty to 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
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11073 Document: 00515013730 Page: 2 Date Filed: 06/27/2019
No. 18-11073
§ 1326(b) must be alleged in the indictment and proven to a jury 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 an indictment or found by a jury beyond a
reasonable doubt. We have held that subsequent Supreme Court decisions did
not overrule 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)). Herrera-Segovia’s argument is
thus 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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