Case: 18-11406 Document: 00515037670 Page: 1 Date Filed: 07/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11406 FILED
Summary Calendar July 17, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERVANDO PINEDA-CASTELLANOS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-52-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Servando Pineda-Castellanos appeals his guilty plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326 and his above-guidelines sentence
of 23 months of imprisonment and two years of supervised release. He argues
that the district court plainly erred in sentencing him under § 1326(b)(1)
because that statutory enhancement scheme is unconstitutional, and that his
guilty plea is involuntary and was accepted in violation of Federal Rule of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11406 Document: 00515037670 Page: 2 Date Filed: 07/17/2019
No. 18-11406
Criminal Procedure 11 because he was not admonished that the fact of a prior
conviction is an essential element of the offense that the Government must
prove to a jury beyond a reasonable doubt. In addition, he argues that the
district court imposed an unconstitutionally and statutorily vague, overbroad,
and unreasonable supervised release condition requiring him to permit a
probation officer to visit him at any time and place and to permit the probation
officer to take any contraband in plain view. He further argues that the district
court insufficiently explained the imposition of this condition. Pineda-
Castellanos concedes that all of his arguments are unpreserved and subject to
review for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
The Government has filed an unopposed motion for summary affirmance
arguing that Pineda-Castellanos’s arguments are foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), and United States v. Cabello, 916
F.3d 543 (5th Cir. 2019). As Pineda-Castellanos concedes that his arguments
are foreclosed by those decisions, 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 is AFFIRMED. The Government’s alternative motion for an
extension of time to file a brief is DENIED.
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