Case: 21-10520 Document: 00516116110 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. 21-10520 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Miguel Lerma-Reyes,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-119-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Miguel Lerma-Reyes appeals following his guilty-plea conviction of
illegal reentry into the United States, arguing that the enhancement of his
sentence pursuant to 8 U.S.C. § 1326(b)(2) is unconstitutional because the
fact of a prior conviction must be charged and proved to a jury beyond a
*
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opinion should not be published and is not precedent except under the limited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: 21-10520 Document: 00516116110 Page: 2 Date Filed: 12/03/2021
No. 21-10520
reasonable doubt and that his plea was involuntary because he was not
admonished that § 1326(b)(2) contained an essential offense element. He
acknowledges that these arguments are foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but he wishes to preserve them for further
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 concluded that subsequent Supreme Court decisions 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, Lerma-Reyes’s concession of foreclosure is
correct, and summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
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.
2