United States v. Joel Arredondo-Moreno

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 21, 2020
• Docket: 19-50772
• Status: Unpublished

Opinion

Case: 19-50772 Document: 00515318282 Page: 1 Date Filed: 02/21/2020

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

FILED No. 19-50772 February 21, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOEL ARREDONDO-MORENO,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:18-CR-2621-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges. PER CURIAM: * Joel Arredondo-Moreno appeals the sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation 8 U.S.C. § 1326. He argues that the enhancement of his sentence pursuant to § 1326(b)(2), which increased his statutory maximum sentence to 20 years of imprisonment and three years of supervised release, is unconstitutional because of the treatment of the provision as a sentencing factor rather than as

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50772 Document: 00515318282 Page: 2 Date Filed: 02/21/2020

No. 19-50772

an element of a separate offense that must be proved to a jury beyond a reasonable doubt. He concedes that this issue is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998). However, he seeks to preserve the issue for possible Supreme Court review because, he argues, subsequent decisions indicate that the Supreme Court may reconsider its holding in Almendarez-Torres. 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 an 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)). Thus, Arredondo-Moreno’s argument is foreclosed. 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.