United States v. De La Rosa-Rodriguez

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   opinion should not be published and is not precedent except under the limited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.




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