Opinion
No. 18-50761
04-02-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE MATIAS-VICENTE, Defendant-Appellant
Summary Calendar Appeal from the United States District Court for the Western District of Texas
USDC No. 4:18-CR-158-1 Before JOLLY, COSTA, and HO, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
Jose Matias-Vicente appeals the 37-month within-guidelines sentence imposed following his guilty plea conviction for illegal reentry after having been previously deported. He argues that his indictment did not allege that he had a prior conviction and that, therefore, his sentence under 8 U.S.C. § 1326(b) violates his due process rights by exceeding the two-year statutory maximum provided by § 1326(a). He concedes that this argument 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. The Government has moved for summary affirmance, urging that the issue is foreclosed.
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 the 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, e.g., 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, Matias-Vicente's argument is foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government's unopposed motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.