Case: 21-50107 Document: 00515914873 Page: 1 Date Filed: 06/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 25, 2021
No. 21-50107
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Carlos De La Rosa-Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-328-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Luis Carlos De La Rosa-Rodriguez appeals his sentence of 30 months
of imprisonment and three years of supervised release, which the district
court imposed following his guilty plea conviction for illegal reentry. He
argues that 8 U.S.C. § 1326(b)(2), which was used to enhance his sentence,
*
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opinion should not be published and is not precedent except under the limited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: 21-50107 Document: 00515914873 Page: 2 Date Filed: 06/25/2021
No. 21-50107
is unconstitutional because it increases the statutory maximum sentence
based on the fact of a prior conviction neither alleged in the indictment nor
found by a jury beyond a reasonable doubt. He concedes that the issue is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for further review. The Government moves for
summary affirmance, asserting that De La Rosa-Rodriguez’s argument is
foreclosed.
The parties are correct that 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