Case: 20-51034 Document: 00515910378 Page: 1 Date Filed: 06/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 22, 2021
No. 20-51034
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Miguel Angel Cuellar-Arreola,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CR-1813-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Miguel Angel Cuellar-Arreola appeals the 24-month, below-
guidelines prison sentence and three-year term of supervised release imposed
following his guilty plea for illegal reentry after removal from the United
States. He contends that his sentence is unconstitutional because 8 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 20-51034 Document: 00515910378 Page: 2 Date Filed: 06/22/2021
No. 20-51034
§ 1326(b) permits a sentence above the otherwise-applicable statutory
maximum found in § 1326(a) without the requirement that the necessary
facts be alleged in an indictment and proved beyond a reasonable doubt.
Cuellar-Arreola requests that we vacate the sentence and remand for
resentencing under § 1326(a), but he concedes that his arguments are
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27
(1998), and he seeks to preserve the issues for further review. The
Government filed an unopposed motion for summary affirmance in which it
agrees that the issue is foreclosed and, in the alternative, a motion for an
extension of time to file a brief.
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 the 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)). Therefore, Cuellar-Arreola’s arguments are foreclosed,
and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED as moot.
2