United States v. Carlos Santos-Guerrero

Case: 19-50437 Document: 00515249917 Page: 1 Date Filed: 12/27/2019

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

No. 19-50437 FILED Summary Calendar December 27, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee v.

CARLOS ODILIO SANTOS-GUERRERO,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:18-CR-1755-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges. PER CURIAM: * Carlos Odilio Santos-Guerrero appeals his guidelines sentence of 14 months of imprisonment and three years of supervised release imposed following his guilty plea conviction for illegal reentry. He argues that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which increased the maximum term of imprisonment to 20 years, is unconstitutional because of the treatment of the provision as a sentencing factor rather than as

• • 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50437 Document: 00515249917 Page: 2 Date Filed: 12/27/2019

No. 19-50437

an element of the offense that must be alleged 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) (considering the effect of Alleyne v. United States, 570 U.S. 99 (2013)); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)). Thus, Santos-Guerrero’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.