United States v. Vazquez-Tellez

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 13, 2022
• Docket: 21-11067
• Status: Unpublished

Opinion

Case: 21-11067 Document: 00516317762 Page: 1 Date Filed: 05/13/2022

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

FILED May 13, 2022 No. 21-11067 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Carlos Vazquez-Tellez,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-591-1

Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:* Carlos Vazquez-Tellez appeals his conviction and 44-month within- guidelines sentence for illegal reentry after having been previously removed, in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that it violates his constitutional due process rights to treat a prior conviction that increases 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-11067 Document: 00516317762 Page: 2 Date Filed: 05/13/2022

No. 21-11067

statutory maximum under § 1326(b) as a sentencing factor, rather than as an element of the offense. Vazquez-Tellez 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 asserts and as Vazquez-Tellez concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). 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.