     Case: 19-51148      Document: 00515486899         Page: 1    Date Filed: 07/13/2020




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

                                                                                 FILED
                                    No. 19-51148                              July 13, 2020
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TOMAS VARGAS-TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:19-CR-2677-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Tomas Vargas-Torres appeals the 30-month, within-guidelines prison
term imposed following his guilty plea conviction for illegally reentering the
United States after removal. Vargas-Torres argues that under the principles
articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 570 U.S. 99 (2013), 8 U.S.C. § 1326(b) is unconstitutional
because it permits a sentence above the statutory maximum in § 1326(a) based


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-51148   Document: 00515486899     Page: 2   Date Filed: 07/13/2020


                                 No. 19-51148

on the fact of a prior felony conviction not alleged in the indictment nor found
by a jury beyond a reasonable doubt. The Government has filed an unopposed
motion for summary affirmance and, alternatively, seeks an extension of time
to file its brief.
       As the Government argues and as Vargas-Torres concedes, this issue is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Because the issue is
foreclosed, 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 is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.




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