     Case: 19-50262      Document: 00515181104         Page: 1    Date Filed: 10/30/2019




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

                                                                               FILED
                                    No. 19-50262                        October 30, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO PALACIOS-CORDERO, also known as Jesus Rodriguez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:18-CR-3190-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Mario Palacios-Cordero appeals the 57-month, within-guidelines
sentence and three-year term of non-reporting supervised release imposed
following his guilty plea conviction for illegal reentry into the United States.
He argues that the enhancement of his sentence pursuant to 8 U.S.C.
§ 1326(b)(1), which increased the maximum term of imprisonment to 10 years,
is unconstitutional because of the treatment of the provision as a sentencing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50262    Document: 00515181104     Page: 2   Date Filed: 10/30/2019


                                 No. 19-50262

factor rather than as an element of a separate offense that must be proved to
a jury beyond a reasonable doubt. He concedes that the issue of whether a
sentencing enhancement under § 1326(b) must be alleged in the indictment
and proved to a jury 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.
      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 an indictment or found by a jury beyond a
reasonable doubt. We have held that subsequent Supreme Court decisions did
not overrule Almendarez-Torres. See 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, Palacios-Cordero’s argument is foreclosed.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED; the Government’s alternative motion for an extension of time to
file a brief is DENIED; and the judgment of the district court is AFFIRMED.




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