     Case: 18-10210      Document: 00514673274         Page: 1    Date Filed: 10/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-10210                            FILED
                                  Summary Calendar                    October 9, 2018
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

YONI RAYO-ESPINOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-436-1


Before DENNIS, CLEMENT, OWEN, Circuit Judges.
PER CURIAM: *
       Yoni Rayo-Espinoza appeals the 41-month within-guidelines sentence
imposed following his guilty plea conviction for illegal reentry. He argues that
his sentence violates due process because it exceeds the statutory maximum
sentence of 8 U.S.C. § 1326(a).          He concedes that the issue whether his
eligibility for a sentencing enhancement under § 1326(b) must be alleged in the
indictment and proved to a jury is foreclosed by Almendarez-Torres v. United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10210    Document: 00514673274    Page: 2   Date Filed: 10/09/2018


                                No. 18-10210

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.    This court has 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, Rayo-Espinoza’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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