United States v. Hermenegildo Espinoza

Opinion

Case: 20-20028 Document: 00515484525 Page: 1 Date Filed: 07/10/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 20-20028 July 10, 2020 Summary Calendar

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HERMENEGILDO MARGARITO ESPINOZA ESPINOZA,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-437-1

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges. PER CURIAM: * Hermenegildo Margarito Espinoza Espinoza argues that his guilty plea was involuntary because the district court failed to advise him at rearraignment that his prior felony conviction was an essential element of his illegal reentry offense under 8 U.S.C. § 1326(b)(1). He also contends that his sentence under § 1326(b)(1) is unconstitutional because it is based on facts

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 20-20028 Document: 00515484525 Page: 2 Date Filed: 07/10/2020

No. 20-20028

neither alleged in his indictment nor proven to a jury beyond a reasonable doubt.

As Espinoza Espinoza concedes, his arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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). Thus, 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, 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.