United States v. Juan Montelongo-Montero

Opinion

Case: 20-50201 Document: 00515575485 Page: 1 Date Filed: 09/23/2020

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

FILED

September 23, 2020

No. 20-50201 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Juan Jose Montelongo-Montero, also known as Juan Jose M M, also known as Juan Jose Montelongo, also known as Juan Jose Montero, also known as Juan Jose Montero-Montelongo, also known as Juanjose Montelongo Montero,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:19-CR-811-1

Before King, Smith, and Wilson, Circuit Judges. Per Curiam:* Juan Jose Montelongo-Montero appeals his sentence of 30 months of imprisonment and three years of supervised release, which the district court

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-50201 Document: 00515575485 Page: 2 Date Filed: 09/23/2020

No. 20-50201

imposed following his guilty plea conviction for illegal reentry. He asserts that the enhancement of his sentence based on his prior conviction under 8 U.S.C. § 1326(b)(2), which increased the statutory maximum term of imprisonment, is unconstitutional because his prior conviction is treated as a sentencing factor rather than an element of the offense that must be alleged in the indictment and found by a jury beyond a reasonable doubt. He concedes that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for further review. The Government moves for summary affirmance, asserting that Montelongo-Montero’s argument is foreclosed.

The parties are correct that Almendarez-Torres forecloses Montelongo-Montero’s assertion. 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). Accordingly, the Government’s motion for summary affirmance is GRANTED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The district court’s judgment is AFFIRMED, and the Government’s alternative motion for an extension of time to file its brief is DENIED AS MOOT.