United States v. Cuellar-Arreola

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 2021
• Docket: 20-51034
• Status: Unpublished

Opinion

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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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.