United States v. Edgardo Navarro

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 22, 2020
• Docket: 19-10471
• Status: Unpublished

Opinion

Case: 19-10471 Document: 00515281405 Page: 1 Date Filed: 01/22/2020

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

FILED No. 19-10471 January 22, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDGARDO NAVARRO,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:18-CR-279-1

Before KING, GRAVES, and WILLETT, Circuit Judges. PER CURIAM: * Edgardo Navarro appeals his sentence to 27 months of imprisonment and three years of supervised release following his guilty plea conviction for illegal reentry. He contends that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2) is unconstitutional because the fact of a prior conviction must be charged and proved to a jury beyond a reasonable doubt. While Navarro acknowledges this argument is foreclosed by Almendarez-Torres v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-10471 Document: 00515281405 Page: 2 Date Filed: 01/22/2020

No. 19-10471

United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. The Supreme Court held in Almendarez-Torres that for purposes of a statutory sentencing enhancement, a prior conviction is not a fact that must be alleged in an indictment or found beyond a reasonable doubt by a jury. 523 U.S. at 239-47. This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. 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). Thus, Navarro is correct that his argument is foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 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 district court’s judgment is AFFIRMED.