United States v. Jorge Jamaica-Hernandez

Opinion

Case: 20-50182 Document: 00515531070 Page: 1 Date Filed: 08/18/2020

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

FILED August 18, 2020 No. 20-50182 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Jorge Armando Jamaica-Hernandez,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 2:19-CR-1830-1

Before Jolly, Elrod, and Graves, Circuit Judges. Per Curiam:* Jorge Armando Jamaica-Hernandez appeals the within-guidelines, 37- month sentence imposed following his guilty plea conviction for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. He argues that his sentence was imposed under an unconstitutional

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 20-50182 Document: 00515531070 Page: 2 Date Filed: 08/18/2020

No. 20-50182

sentencing provision because § 1326(b) permits a defendant’s sentence to be enhanced even if the fact of a prior conviction is not alleged in the indictment and proved beyond a reasonable doubt. He correctly concedes that his claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he raises the issue to preserve it for further possible review. 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). The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. Because the issue is foreclosed, 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.