     Case: 18-40224      Document: 00514732277         Page: 1    Date Filed: 11/21/2018




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

                                    No. 18-40224
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                   November 21, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

CARLOS TOBAR-TORRES, also known as Carlos Omar Tovar-Torres,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-511-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Carlos Tobar-Torres appeals the 27-month guidelines sentence and 3-
year term of supervised release 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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40224    Document: 00514732277    Page: 2   Date Filed: 11/21/2018


                                No. 18-40224

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.    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, Tobar-Torres’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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