Case: 20-51043 Document: 00515933560 Page: 1 Date Filed: 07/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 12, 2021
No. 20-51043 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Daniel Marroquin-Santiago,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 2:19-CR-1548-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Daniel Marroquin-Santiago appeals the 30-month, within-guidelines
sentence and three-year term of supervised release imposed for illegal reentry
after removal. He contends that his sentence is unconstitutional because
8 U.S.C. § 1326(b) permits a sentence above the otherwise applicable statu-
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-51043 Document: 00515933560 Page: 2 Date Filed: 07/12/2021
No. 20-51043
tory maximum found in § 1326(a) without requiring that the necessary facts
be alleged in an indictment and proven beyond a reasonable doubt.
Marroquin-Santiago requests that we vacate and remand for resen-
tencing under § 1326(a), but he concedes that his position is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226−27 (1998); he seeks to
preserve the issue for further review. The government filed an unopposed
motion for summary affirmance in which it agrees that the issue is foreclosed;
in the alternative, it seeks an extension to file its brief.
In Almendarez-Torres, id. at 239−47, the Court held that, for purposes
of a statutory sentencing enhancement, a prior conviction is not a fact that
must be alleged in the indictment or found by a jury beyond a reasonable
doubt. This court has held that subsequent Supreme Court decisions did not
overrule Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497
(5th Cir. 2014) (considering the effect of Alleyne v. United States, 570 U.S. 99
(2013)); United States v. Pineda-Arrellano, 492 F.3d 624, 625−26 (5th Cir.
2007) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)).
Therefore, Marroquin-Santiago’s contentions are foreclosed, and summary
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment is AFFIRMED. The alternative motion for an extension is
DENIED as moot.
2