Case: 17-10548 Document: 00514290274 Page: 1 Date Filed: 01/02/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10548 FILED
Summary Calendar January 2, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HILARIO GONZALEZ-ROSALES
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-259-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Hilario Gonzalez-Rosales appeals the two-year term of supervised
release imposed by the district court following his guilty plea conviction for
illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He argues
that his sentence violates due process because it exceeds the statutory
maximum supervised release term that can be imposed for a violation of
§ 1326(a). See 18 U.S.C. §§ 3559(a)(5), 3583(b)(3). He asserts that he was not
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10548 Document: 00514290274 Page: 2 Date Filed: 01/02/2018
No. 17-10548
subject to the enhanced penalties set forth in § 1326(b) because no felony
offense was alleged in the indictment. He concedes that the issue whether his
eligibility for a sentencing enhancement under § 1326(b) must be alleged in the
indictment and proved to a jury is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). However, he seeks to preserve the issue for
possible Supreme Court review because, he argues, subsequent Supreme Court
decisions indicate that the Court may reconsider this issue.
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. This court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014) (considering the effect of Alleyne v. United
States, 570 U.S. 99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624,
625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530
U.S. 466 (2000)). Thus, Gonzalez-Rosales’s argument is foreclosed.
Accordingly, 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 judgment of the district court is AFFIRMED.
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