United States v. Mario Palacios-Cordero

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 30, 2019
• Docket: 19-50262
• Status: Unpublished

Opinion

Case: 19-50262 Document: 00515181104 Page: 1 Date Filed: 10/30/2019

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

FILED No. 19-50262 October 30, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARIO PALACIOS-CORDERO, also known as Jesus Rodriguez,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:18-CR-3190-1

Before KING, GRAVES, and WILLETT, Circuit Judges. PER CURIAM: * Mario Palacios-Cordero appeals the 57-month, within-guidelines sentence and three-year term of non-reporting supervised release imposed following his guilty plea conviction for illegal reentry into the United States. He argues that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(1), which increased the maximum term of imprisonment to 10 years, is unconstitutional because of the treatment of the provision as a sentencing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50262 Document: 00515181104 Page: 2 Date Filed: 10/30/2019

No. 19-50262

factor rather than as an element of a separate offense that must be proved to a jury beyond a reasonable doubt. He concedes that the issue of whether a sentencing enhancement under § 1326(b) must be alleged in the indictment and proved to a jury 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 Supreme Court decisions indicate that the Court may reconsider this issue. 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. We have 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, Palacios-Cordero’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.