Omar Sanchez-Barrera appeals the within-guidelines sentence of 37 months of imprisonment and three years of supervised release imposed following his guilty plea conviction for illegal reentry after deportation from the United States. He argues that the enhanced sentencing range in 8 U.S.C. § 1326(b) is unconstitutional because a prior conviction is an element of the offense that must be alleged in the indictment or found by a jury beyond a reasonable doubt. He concedes that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve it for further review. The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed by Almendarez-Torres. Alternatively, the Government requests an extension of time to file its brief.
In Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. 1219, the Supreme Court held that a prior conviction used to enhance a sentence under § 1326(b) is a sentencing factor, not an element of the offense. Neither Apprendi v. New Jersey, 530 U.S. 466, 476, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), nor subsequent Supreme Court cases overruled Almendarez-Torres, which remains binding precedent. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Accordingly, Sanchez-Barreras sole appellate argument is foreclosed by Almendarez-Torres.
Because the Governments 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), the Governments motion for summary affirmance is GRANTED, the Governments alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court 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FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.