Jorge Ivan Vazquez-Medrano appeals his conviction for illegal reentry following deportation and his sentence to 36 months of imprisonment and two years of supervised release. See 8 U.S.C. § 1326(a), (b)(2). He contends that the district court erred in applying the enhancement in § 1326(b)(2) based on a prior conviction for aggravated assault with a deadly weapon because the existence of the prior conviction was neither pleaded in the indictment nor found by a jury beyond a reasonable doubt. He also contends that the courts failure to advise him at rearraignment that the prior conviction was an essential element of the offense violated Federal Rule of Criminal Procedure 11 and renders his plea involuntary. Vazquez-Medrano concedes that his arguments are foreclosed by United States v. Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises them only to preserve the issues for future Supreme Court review. Relying on Almendarez-Torres, the Government moves for summary affirmance or, alternatively, for an extension of time to file a brief.
In Almendarez-Torres, the Supreme Court held that a prior conviction used to increase a defendants maximum sentence under § 1326(b) is a sentencing factor, not an element of the offense that must be charged in the indictment and proven to a jury. 523 U.S. at 228, 235, 118 S.Ct. 1219. Almendarez-Torres “remains binding precedent until and unless it is officially overruled by the Supreme Court.” United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). Consequently, the Government is “clearly right” that Almendarez-Torres forecloses appellate relief on Vazquez-Medranos arguments, such that there is “no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
The motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The Governments alternative motion for an extension of time is DENIED AS MOOT.
FOOTNOTES
FOOTNOTE
Per Curiam:*
FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.