United States v. Aniceto De La Cruz- Tiburcio

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 23, 2020
• Docket: 20-50489
• Status: Unpublished

Opinion

Case: 20-50489 Document: 00515614474 Page: 1 Date Filed: 10/23/2020

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 20-50489 October 23, 2020 Summary Calendar Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Aniceto De La Cruz-Tiburcio,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 2:19-CR-3091-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges. Per Curiam:* Aniceto De La Cruz-Tiburcio appeals his sentence of 33 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry. He asserts that the enhancement of his sentence based on his prior conviction pursuant

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50489 Document: 00515614474 Page: 2 Date Filed: 10/23/2020

No. 20-50489

to 8 U.S.C. § 1326(b)(1), which increased the statutory maximum term of imprisonment, is unconstitutional because his prior conviction is treated as a sentencing factor rather than an element of the offense that must be alleged in the indictment and found by a jury beyond a reasonable doubt. He concedes that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for further review. The Government moves for summary affirmance, asserting that De La Cruz- Tiburcio’s argument is foreclosed. The parties are correct that De La Cruz-Tiburcio’s assertion is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Accordingly, the Government’s motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s alternative motion for an extension of time to file a brief is DENIED as unnecessary, and the judgment of the district court is AFFIRMED.