United States v. Jose Morales-Mercado

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 19, 2020
• Docket: 19-50827
• Status: Unpublished

Opinion

Case: 19-50827 Document: 00515351605 Page: 1 Date Filed: 03/19/2020

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

FILED No. 19-50827 March 19, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE RICARDO MORALES-MERCADO,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:19-CR-188-1

Before STEWART, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * Jose Ricardo Morales-Mercado appeals the 51-month sentence imposed following his guilty plea conviction for being found unlawfully present in the United States after previous deportation. He argues that his sentence was imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, he contends that in order to trigger a sentencing enhancement under § 1326(b), the fact of a prior conviction must be alleged in the indictment and proven to a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50827 Document: 00515351605 Page: 2 Date Filed: 03/19/2020

No. 19-50827

jury; therefore, he asserts that § 1326(b) is unconstitutional. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but raises the issue to preserve 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.