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United States v. Trujillo-Gutierrez

Court: Court of Appeals for the Fifth Circuit
Date filed: 2021-12-03
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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   ion should not be published and is not precedent except under the limited circumstances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.




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