United States v. Lopez-Rodriguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 18, 2021
• Docket: 21-50235
• Status: Unpublished

Opinion

Case: 21-50235 Document: 00516059036 Page: 1 Date Filed: 10/18/2021

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

FILED October 18, 2021 No. 21-50235 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Miguel Lopez-Rodriguez,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:20-CR-279-1

Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Miguel Lopez-Rodriguez appeals the sentence of 30 months of imprisonment and three years of supervised release imposed following his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1). He contends for the first time on appeal that it violates the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50235 Document: 00516059036 Page: 2 Date Filed: 10/18/2021

No. 21-50235

Constitution to apply § 1326(b)(1)’s enhanced sentencing range based on a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. Lopez-Rodriguez correctly concedes that the argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief. As the Government argues and as Lopez-Rodriguez concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. 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). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper. Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.