Case: 21-10778 Document: 00516251805 Page: 1 Date Filed: 03/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 24, 2022
No. 21-10778
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Fidel Torres-Villanueva,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:21-CR-6-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Fidel Torres-Villanueva appeals his conviction and sentence for illegal
reentry after having been previously removed, pursuant to 8 U.S.C. § 1326(a)
and (b)(1). For the first time on appeal, he argues that it is violative of the
Constitution to treat a prior conviction that increases the statutory maximum
*
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opinion should not be published and is not precedent except under the limited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: 21-10778 Document: 00516251805 Page: 2 Date Filed: 03/24/2022
No. 21-10778
under § 1326(b) as a sentencing factor, rather than as an element of the
offense. He correctly concedes that the argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to
preserve it for further review. The Government has moved without
opposition for summary affirmance or, alternatively, for an extension of time
to file its brief.
As the Government asserts and as Torres-Villanueva concedes, the
sole issue raised on appeal is foreclosed by Almendarez-Torres. See United
States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014). 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 Government’s unopposed motion for summary
affirmance is GRANTED. The Government’s alternative motion for an
extension of time to file an appellate brief is DENIED. The district court’s
judgment is AFFIRMED.
2