Case: 21-50402 Document: 00516109412 Page: 1 Date Filed: 11/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 29, 2021
No. 21-50402
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yovani Medina-Aguilar,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CR-2625-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Yovani Medina-Aguilar pled guilty to illegal reentry after removal in
violation of 8 U.S.C. § 1326(a). While this offense carries a punishment of
no more than two years, that maximum becomes twenty years if the
defendant was convicted of an aggravated felony prior to removal. 8 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 21-50402 Document: 00516109412 Page: 2 Date Filed: 11/29/2021
No. 21-50402
§ 1326(a), (b)(2). At sentencing, the district court applied the twenty-year
maximum and sentenced Medina-Aguilar to 38 months of imprisonment and
three years of supervised release.
On appeal, Medina-Aguilar asserts that the sentencing enhancement
under § 1326(b) is unconstitutional because it increases the statutory
maximum sentence based on the fact of a prior felony conviction neither
alleged in the indictment nor found by a jury beyond a reasonable doubt. He
contends that if the § 1326(b) enhancement is unconstitutional, he is subject
to no more than two years of imprisonment and one year of supervised release
under § 1326(a). Medina-Aguilar concedes that his challenge 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 has filed an
unopposed motion for summary affirmance agreeing that the issue is
foreclosed and, in the alternative, a motion for an extension of time to file its
brief.
As the Government argues, and Medina-Aguilar concedes, 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 AS MOOT.
2