Case: 18-51050 Document: 00515083793 Page: 1 Date Filed: 08/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-51050
Fifth Circuit
FILED
Summary Calendar August 20, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RICARDO GUZMAN-NAJERA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-2390-1
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ricardo Guzman-Najera appeals the 21-month, within-guidelines
sentence imposed following his guilty-plea conviction of illegal reentry in
violation of 8 U.S.C. § 1326. He argues that his sentence violates due process
because it exceeds the statutory maximum sentence allowed by
Section 1326(a). Specifically, Guzman-Najera argues that a prior conviction
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-51050 Document: 00515083793 Page: 2 Date Filed: 08/20/2019
No. 18-51050
that enhances a sentence under Section 1326(b) must be alleged in the
indictment and proved to a jury. He correctly concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). However, he seeks to
preserve the issue for possible Supreme Court review.
The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Because Guzman-Najera’s argument is
foreclosed, 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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