Leonel Rodriguez-Caraveo appeals his conviction for illegal reentry after deportation and his within-guidelines sentence of 32 months of imprisonment and three years of supervised release. He argues for the first time on appeal that 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He also makes the related argument that his guilty plea was involuntary because he was not informed that his prior felony conviction was an element of the offense. He concedes that these issues are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve them for possible Supreme Court review. Agreeing that the issues are foreclosed, the Government has filed a motion for summary affirmance and, in the alternative, a motion for an extension of time to file a brief.
The parties are correct that Rodriguez-Caraveos arguments are foreclosed by Almendarez-Torres. 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). Accordingly, the Governments motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Governments alternative motion for an extension of time to file a brief is DENIED as moot, and the judgment is AFFIRMED.
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FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.