United States v. Samuel Zubia-Olivas

Opinion

Case: 20-50212 Document: 00515575444 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. 20-50212 Summary Calendar Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Samuel Zubia-Olivas,

Defendant—Appellant,

consolidated with

_____________

No. 20-50228

_____________

United States of America,

Plaintiff—Appellee,

versus

Samuel Zubia-Olivas, also known as Juan Zubias-Sanchez, also known as Samuel Olivas Zubia, also known as Samuel Olivas-Zubia, also known as Samuel Zubia Olivas, also known as Samuel Olivias Zubias,

Defendant—Appellant.

Case: 20-50212 Document: 00515575444 Page: 2 Date Filed: 09/23/2020

No. 20-50212 c/w No. 20-50228

Appeals from the United States District Court for the Western District of Texas USDC No. 7:16-CR-90-1 USDC No. 4:19-CR-747-1

Before Haynes, Willett, and Ho, Circuit Judges. Per Curiam:* Samuel Zubia-Olivas appeals his Guidelines sentence of 96 months of imprisonment and 3 years of supervised release following his guilty plea conviction for illegal reentry. He argues that the enhancement of his sentence under 8 U.S.C. § 1326(b)(1), which increases the maximum term of imprisonment to ten years, is unconstitutional because the statute treats a prior conviction as a sentencing factor, rather than as an element of a separate offense that must be listed in the indictment and proved to a jury beyond a reasonable doubt. He concedes that this issue 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 decisions indicate that the Supreme Court may reconsider its holding in Almendarez-Torres.

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. This Court has held that subsequent Supreme Court decisions did not overrule Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (concluding that Alleyne v. United States, 570 U.S. 99 (2013) did not disturb Almendarez-Torres); United States v. Rojas-

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

3

Case: 20-50212 Document: 00515575444 Page: 3 Date Filed: 09/23/2020

No. 20-50212 c/w No. 20-50228

Luna, 522 F.3d 502, 505 (5th Cir. 2008) (concluding Apprendi v. New Jersey, 530 U.S. 466 (2000), did not affect the treatment of prior convictions under Almendarez-Torres). Thus, Zubia-Olivas’s argument is foreclosed.

Accordingly, the judgment of the district court is AFFIRMED, the Government’s motion for summary affirmance is GRANTED, and the Government’s alternative motion for an extension of time to file a brief is DENIED AS MOOT.