     Case: 17-10096      Document: 00514251564         Page: 1    Date Filed: 11/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 17-10096                                     FILED
                                  Summary Calendar                           November 28, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                     Clerk


                                                 Plaintiff-Appellee

v.

ANTONIO CAUICH-GAMBOA, also known as Marco Antonio Arce Araico,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-345-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Antonio    Cauich-Gamboa         appeals the 30-month            above-guidelines
sentence imposed following his guilty plea conviction for illegal reentry. He
argues that although 18 U.S.C. § 1326(a) and (b) set forth different statutory
maximum sentences based on criminal history, this factor is considered as a
sentencing factor rather than an element of the offense.                Cauich-Gamboa
asserts that because his sentence exceeds the two-year statutory maximum 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10096    Document: 00514251564    Page: 2   Date Filed: 11/28/2017


                                No. 17-10096

§ 1326(a), it violates due process. He concedes that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but 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, 133 S. Ct. 2151 (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, Cauich-Gamboa’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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