Case: 21-50500 Document: 00516074331 Page: 1 Date Filed: 10/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 29, 2021
No. 21-50500
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Fernando Contreras-Rojas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-579-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:
Fernando Contreras-Rojas appeals the sentence imposed following his
guilty plea conviction of illegal reentry. The sole argument Contreras-Rojas
raises on appeal is that the enhancement of his sentence under
8 U.S.C. § 1326(b)(1) is unconstitutional because the fact of a prior
conviction was neither found by a jury nor alleged in the indictment. He
acknowledges that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he wishes to preserve the issue for further
Case: 21-50500 Document: 00516074331 Page: 2 Date Filed: 10/29/2021
No. 21-50500
review. The Government has moved for summary affirmance or, in the
alternative, for an extension of time to file a brief.
Almendarez-Torres held that a prior conviction is not a fact that must
be alleged in an indictment or found beyond a reasonable doubt by a jury for
purposes of a statutory sentencing enhancement. 523 U.S. at 239-47. This
court has held that subsequent Supreme Court decisions such as Alleyne v.
United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466
(2000), did not overrule Almendarez-Torres. See, e.g., 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, Contreras-Rojas’s
concession of foreclosure is correct, and summary judgment is appropriate.
See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Over fourteen years ago, this court opined that appeals based on
Almendarez-Torres are virtually all frivolous. See United States v. Pineda-
Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). After hundreds, if not
thousands, more cases challenging Almendarez-Torres, we reiterate and
reaffirm our statement that “[i]n the future, barring new developments in
Supreme Court jurisprudence, arguments seeking reconsideration of
Almendarez-Torres will be viewed with skepticism.” Id. at 626. We urge
“appellants and their counsel not to damage their credibility with this court
by asserting non-debatable arguments.” Id. at 626. We meant it then and
mean it now.
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 district court’s judgment is AFFIRMED.
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