Case: 20-50749 Document: 00515824273 Page: 1 Date Filed: 04/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 16, 2021
No. 20-50749 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Eleno Guillen-Morales,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-217-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Eleno Guillen-Morales pleaded guilty to illegal reentry after removal,
in violation of 8 U.S.C. § 1326. He was sentenced to a 37-month term of
imprisonment, to be followed by a three-year term of supervised release.
*
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opinion should not be published and is not precedent except under the limited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: 20-50749 Document: 00515824273 Page: 2 Date Filed: 04/16/2021
No. 20-50749
Raising one issue on appeal, Guillen-Morales argues that the
recidivism enhancement under § 1326(b) is unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent decisions
because it allows a sentence above the otherwise applicable statutory
maximum based on facts that are neither alleged in the indictment or found
by a jury beyond a reasonable doubt. Guillen-Morales 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, agreeing that the issue is foreclosed, has filed an unopposed
motion for summary affirmance. In the alternative, the Government requests
an extension of time to file a brief.
As the Government argues, and Guillen-Morales 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, 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