United States v. Gerardo Madrid

Case: 17-50404 Document: 00514297934 Page: 1 Date Filed: 01/08/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50404 FILED
Summary Calendar January 8, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

GERARDO MADRID,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-1095-1

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Gerardo Madrid appeals the 30-month above-guidelines sentence and
three-year term of supervised release imposed following his guilty plea
conviction for illegal reentry into the United States. He argues that his
sentence violates due process because it exceeds the statutory maximum
sentence provided in 8 U.S.C. § 1326(a). Madrid concedes that the issue
whether his eligibility for a sentencing enhancement under § 1326(b) must be

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50404 Document: 00514297934 Page: 2 Date Filed: 01/08/2018

No. 17-50404

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. Subsequent Supreme Court decisions have not overruled
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014) (considering the effect of Alleyne v. United States, 133 S. Ct. 2151 (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,
Madrid’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.