United States v. Argueta-Urbina

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 19, 2021
• Docket: 21-50369
• Status: Unpublished

Opinion

Case: 21-50369 Document: 00516060883 Page: 1 Date Filed: 10/19/2021

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

FILED No. 21-50369 October 19, 2021 Summary Calendar Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Alexi Lenin Argueta-Urbina,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 2:19-CR-1087-1

Before Southwick, Oldham, and Wilson, Circuit Judges. Per Curiam:* Alexi Lenin Argueta-Urbina appeals the 57-month, within guidelines range sentence imposed after his guilty plea conviction for illegal reentry by a removed alien, pursuant to 8 U.S.C. § 1326(a). Argueta-Urbina contends that his sentence is unconstitutional because § 1326(b)(1), which was used to

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50369 Document: 00516060883 Page: 2 Date Filed: 10/19/2021

No. 21-50369

enhance his sentence based on his having been previously deported following a conviction for a felony offense, is no longer valid in light of the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). Argueta-Urbina concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for future review. The Government moves for summary affirmance or, alternatively, for an extension of time in which to file a merits brief. The parties are correct that Argueta-Urbina’s argument is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (“We recently acknowledged that the Almendarez– Torres exception survived Alleyne.”); United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007) (“Almendarez-Torres remains binding precedent until and unless it is officially overruled by the Supreme Court.”). 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 is DENIED as unnecessary. AFFIRMED.