Case: 21-50488 Document: 00516116027 Page: 1 Date Filed: 12/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 3, 2021
No. 21-50488
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Bonifacio Eduardo Trujillo-Gutierrez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 4:20-CR-587-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Bonifacio Trujillo-Gutierrez appeals his sentence for illegal reentry
after removal in violation of 8 U.S.C. § 1326(a) and (b)(1). For the first time
on appeal, Trujillo-Gutierrez contends that the sentence is unconstitutional
because his indictment alleged only those facts sufficient for a conviction
*
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ion should not be published and is not precedent except under the limited circumstances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: 21-50488 Document: 00516116027 Page: 2 Date Filed: 12/03/2021
No. 21-50488
under § 1326(a) and did not include any allegations of a prior conviction
necessary for the § 1326(b)(1) enhancement.
Trujillo-Gutierrez concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226−27 (1998), but seeks
to preserve the issue for further review. The government has filed an unop-
posed motion for summary affirmance, agreeing that the issue is foreclosed,
and in the alternative, a motion for an extension of time to file a brief.
As the government says and Trujillo-Gutierrez 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 government’s
position “is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment is AFFIRMED. The government’s alternative motion for an
extension of time to file a brief is DENIED.
2