Case: 21-50014 Document: 00515914573 Page: 1 Date Filed: 06/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-50014 June 25, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Guadalupe Flores,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-257-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Guadalupe Flores was sentenced to 27 months of imprisonment and
three years of supervised release for his guilty plea conviction of illegal
reentry after removal, in violation of 8 U.S.C. § 1326. Raising one issue on
appeal, Flores argues that the recidivism enhancement under § 1326(b) is
*
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opinion should not be published and is not precedent except under the limited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: 21-50014 Document: 00515914573 Page: 2 Date Filed: 06/25/2021
No. 21-50014
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
subsequent decisions because the statute provides for a sentence above the
otherwise applicable statutory maximum based on facts that are neither
alleged in the indictment nor found by a jury beyond a reasonable doubt.
Flores concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for
further review.
The Government has filed an unopposed motion for summary
affirmance or, in the alternative, an extension of time to file a brief. As the
Government argues, and Flores concedes, the sole issue raised on appeal is
foreclosed by Almendarez-Torres, 523 U.S. at 226-27. See 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). 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, the Government’s alternative motion for an extension of time
to file a brief is DENIED AS MOOT, and the judgment of the district court
is AFFIRMED.
2