Case: 20-50730 Document: 00515785367 Page: 1 Date Filed: 03/17/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 17, 2021
No. 20-50730 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Rigoberto Ayala-Duran,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-172-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Rigoberto Ayala-Duran appeals his 16-month within-guidelines prison
term imposed following his guilty plea for illegal reentry after removal from
the United States, in violation of 8 U.S.C. § 1326.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50730 Document: 00515785367 Page: 2 Date Filed: 03/17/2021
No. 20-50730
Raising a single issue on appeal, Ayala-Duran argues that under the
principles articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne v. United States, 570 U.S. 99 (2013), § 1326(b) is unconstitutional
because it permits a sentence above the statutory maximum in § 1326(a)
based on the fact of a prior felony conviction neither alleged in the indictment
nor found by a jury beyond a reasonable doubt. He concedes that this
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998), but he 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.
As the Government argues, and Ayala-Duran concedes, the sole issue
raised on appeal is foreclosed by Almendarez-Torres. 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). Because the issue 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 of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
2