United States v. Silvestre Solis-Garcia

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 11, 2020
• Docket: 20-50385
• Status: Unpublished

Opinion

Case: 20-50384 Document: 00515669511 Page: 1 Date Filed: 12/10/2020

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

FILED December 10, 2020 No. 20-50384 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Silvestre Solis-Garcia, also known as Silvestre Garcia, also known as Silvestre Solis, also known as Silvestre Garcia- Solis,

Defendant—Appellant,

consolidated with _____________

No. 20-50385 _____________

Silvestre Solis-Garcia,

Defendant—Appellant. Case: 20-50384 Document: 00515669511 Page: 2 Date Filed: 12/10/2020

Appeals from the United States District Court for the Western District of Texas USDC No. 4:19-CR-902-1 USDC No. 4:19-CR-927-1

Before Haynes, Willett, and Ho, Circuit Judges. Per Curiam:* Silvestre Solis-Garcia pleaded guilty to illegally reentering the United States after removal in violation of 8 U.S.C. § 1326. Generally, a person convicted for illegal reentry faces up to two years in prison under § 1326(a). However, because Solis-Garcia had been removed from the United States after committing a felony, he faced up to ten years in prison under § 1326(b)(1). He was sentenced to 21 months’ imprisonment and three years’ supervised release. On appeal, Solis-Garcia argues only that under the principles articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), § 1326(b) is unconstitutional because it permits a sentence above the statutory maximum in § 1326(a) based on the fact of a prior felony conviction neither alleged in the indictment nor found by a jury beyond a reasonable doubt. But Solis-Garcia concedes, and we have previously recognized, that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998). 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). Solis-Garcia seeks only to preserve the issue for further review. Summary affirmance, as requested by the Government, is therefore appropriate.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

2 Case: 20-50384 Document: 00515669511 Page: 3 Date Filed: 12/10/2020

No. 20-50384 c/w No. 20-50385 In the consolidated case, Solis-Garcia appeals the revocation of the supervised release term that he was serving for a different conviction. However, in both cases he filed the same brief, which does not address the revocation. Consequently, he has forfeited any challenge to the revocation or revocation sentence. See United States v. Reed, 908 F.3d 102, 123 n.81 (5th Cir. 2018). Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgments of the district court are AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED AS MOOT.