Case: 20-50154 Document: 00515508186 Page: 1 Date Filed: 07/29/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2020
No. 20-50154
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO TOVAR-REGALADO, also known as Alejandro Tovar, also
known as Alejandro Regalado,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CR-226-1
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
Alejandro Tovar-Regalado appeals the 30-month sentence imposed after
his guilty plea conviction for illegal reentry after deportation. He asserts that
his sentence was imposed under an unconstitutional sentencing provision, i.e.,
8 U.S.C. § 1326(b)(1). He suggests that § 1326(b) impermissibly provides that
a defendant’s sentence can be enhanced even if the fact of a prior conviction is
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-50154 Document: 00515508186 Page: 2 Date Filed: 07/29/2020
No. 20-50154
not alleged in the indictment and proved beyond a reasonable doubt. Tovar-
Regalado correctly concedes that his claim is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he raises the issue to preserve it for
further possible review. 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).
The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. Because the issue
is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Thus, 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.
2