     Case: 18-11374      Document: 00515010424         Page: 1    Date Filed: 06/25/2019




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

                                                                                FILED
                                    No. 18-11374                            June 25, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERARDO TAJONAR CORTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-212-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Gerardo Tajonar Cortes appeals the 37-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry after
removal from the United States. He argues that his indictment alleged only
those facts sufficient for a conviction under 8 U.S.C. § 1326(a) and did not
include any allegations of a prior conviction necessary for a sentence under
§ 1326(b)(1).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11374     Document: 00515010424      Page: 2   Date Filed: 06/25/2019


                                   No. 18-11374

      According to Cortes, his sentence under § 1326(b)(1) violates his due
process rights by exceeding the two-year statutory maximum imposed by
§ 1326(a). He concedes that this argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue
for further review. The Government filed an unopposed motion for summary
affirmance agreeing that the issue is foreclosed and in the alternative, a motion
for an extension of time to file a brief.
      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, Cortes’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 motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                  The
Government’s alternative motion for an extension of time to file a brief is
DENIED.




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