     Case: 18-50921      Document: 00514980710         Page: 1    Date Filed: 06/03/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 18-50921
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                        June 3, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

JAIME ENRIGUEZ-HERNANDEZ,                      also   known      as     Jaime           Enriques-
Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:17-CR-1391-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jaime Enriguez-Hernandez appeals the 60-month, within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry in
violation of 8 U.S.C.§ 1326. He argues that his sentence is unconstitutional
because it exceeds the two-year statutory maximum sentence of § 1326(a). He
concedes that the issue is foreclosed by Almendarez-Torres v. United States,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50921    Document: 00514980710     Page: 2   Date Filed: 06/03/2019


                                 No. 18-50921

523 U.S. 224 (1998), and that this court remains bound by Almendarez-Torres,
but wishes to preserve the issue for further review due to what he perceives as
indications by the Supreme Court that it may reconsider that decision. The
Government has filed an unopposed motion for summary affirmance, arguing
that the issue is foreclosed under Almendarez-Torres.         Alternatively, the
Government requests an extension of time to file its brief.
      Summary affirmance is appropriate if “the position of one of the parties
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). In Almendarez-Torres, 523 U.S. at 226-28, 235, 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, Enriguez-Hernandez’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 as moot, and the judgment of the district court is
AFFIRMED.




                                       2
