     Case: 18-11406      Document: 00515037670         Page: 1    Date Filed: 07/17/2019




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

                                    No. 18-11406                             FILED
                                  Summary Calendar                       July 17, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERVANDO PINEDA-CASTELLANOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-52-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Servando Pineda-Castellanos appeals his guilty plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326 and his above-guidelines sentence
of 23 months of imprisonment and two years of supervised release. He argues
that the district court plainly erred in sentencing him under § 1326(b)(1)
because that statutory enhancement scheme is unconstitutional, and that his
guilty plea is involuntary and was accepted in violation of Federal Rule of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11406    Document: 00515037670     Page: 2   Date Filed: 07/17/2019


                                 No. 18-11406

Criminal Procedure 11 because he was not admonished that the fact of a prior
conviction is an essential element of the offense that the Government must
prove to a jury beyond a reasonable doubt. In addition, he argues that the
district court imposed an unconstitutionally and statutorily vague, overbroad,
and unreasonable supervised release condition requiring him to permit a
probation officer to visit him at any time and place and to permit the probation
officer to take any contraband in plain view. He further argues that the district
court insufficiently explained the imposition of this condition.        Pineda-
Castellanos concedes that all of his arguments are unpreserved and subject to
review for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      The Government has filed an unopposed motion for summary affirmance
arguing that Pineda-Castellanos’s arguments are foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), and United States v. Cabello, 916
F.3d 543 (5th Cir. 2019). As Pineda-Castellanos concedes that his arguments
are foreclosed by those decisions, 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 a brief is DENIED.




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