Case: 19-10643 Document: 00515316510 Page: 1 Date Filed: 02/20/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10643
FILED
February 20, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO GONZALEZ-GATICA, also known as Pedro Garcia-Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-213-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Roberto Gonzalez-Gatica appeals the 45-month, below-guidelines
sentence imposed following his guilty plea for illegal reentry after removal
from the United States. He contends that his sentence is unconstitutional
because his indictment alleged only those facts sufficient for a conviction under
§ 1326(a) and did not include any allegations of a prior conviction necessary for
a sentence enhancement under § 1326(b)(2). Relatedly, he asserts that his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10643 Document: 00515316510 Page: 2 Date Filed: 02/20/2020
No. 19-10643
guilty plea was involuntary and that the district court violated Federal Rule of
Criminal Procedure 11(c)(1) because it did not admonish him that the fact of a
prior conviction is an essential element of the offense. Thus, Gonzalez-Gatica
argues that the district court erred in sentencing him to a term of
imprisonment greater than the two-year maximum under § 1326(a). He
concedes that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further
review. The Government filed an unopposed motion for summary affirmance,
agreeing that the issue is foreclosed, and in the alternative, a motion for an
extension of time to file a brief.
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 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, Gonzalez-Gatica’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. The
Government’s alternative motion for an extension of time to file a brief is
DENIED as moot.
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