United States v. Alejandro Tovar-Regalado

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 30, 2020
• Docket: 20-50154
• Status: Unpublished

Opinion

Case: 20-50154 Document: 00515508186 Page: 1 Date Filed: 07/29/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED July 29, 2020 No. 20-50154 Summary Calendar Lyle W. Cayce Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEJANDRO TOVAR-REGALADO, also known as Alejandro Tovar, also known as Alejandro Regalado,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CR-226-1

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURIAM:* Alejandro Tovar-Regalado appeals the 30-month sentence imposed after his guilty plea conviction for illegal reentry after deportation. He asserts that his sentence was imposed under an unconstitutional sentencing provision, i.e., 8 U.S.C. § 1326(b)(1). He suggests that § 1326(b) impermissibly provides that a defendant’s sentence can be enhanced even if the fact of a prior conviction is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 20-50154 Document: 00515508186 Page: 2 Date Filed: 07/29/2020

No. 20-50154

not alleged in the indictment and proved beyond a reasonable doubt. Tovar- Regalado correctly concedes that his claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he raises the issue to preserve it for further possible review. 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). The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Thus, 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.