Case: 20-10974 Document: 00515861061 Page: 1 Date Filed: 05/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 13, 2021
No. 20-10974
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Leonel Rodriguez-Caraveo,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CR-1-1
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Leonel Rodriguez-Caraveo appeals his conviction for illegal reentry
after deportation and his within-guidelines sentence of 32 months of
imprisonment and three years of supervised release. He argues for the first
time on appeal that 8 U.S.C. § 1326(b) is unconstitutional because it allows a
*
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opinion should not be published and is not precedent except under the limited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: 20-10974 Document: 00515861061 Page: 2 Date Filed: 05/13/2021
No. 20-10974
sentence above the otherwise applicable statutory maximum based on facts
that are neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. He also makes the related argument that his guilty plea
was involuntary because he was not informed that his prior felony conviction
was an element of the offense. He concedes that these issues are foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve them for possible Supreme Court review. Agreeing that the issues
are foreclosed, the Government has filed a motion for summary affirmance
and, in the alternative, a motion for an extension of time to file a brief.
The parties are correct that Rodriguez-Caraveo’s arguments are
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). Accordingly, the Government’s motion for summary
affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969), the Government’s alternative motion for an
extension of time to file a brief is DENIED as moot, and the judgment is
AFFIRMED.
2