     Case: 19-50779      Document: 00515267122         Page: 1    Date Filed: 01/10/2020




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

                                                                              FILED
                                    No. 19-50779                       January 10, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EMILIO MEDINA-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:18-CR-2905-1


Before KING, DENNIS, and WILLETT, Circuit Judges.
PER CURIAM: *
       Emilio Medina-Rodriguez appeals the 37-month within-guidelines
sentence and three-year term of supervised release imposed following his
guilty-plea conviction for illegal reentry into the United States. He argues that
the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which
increased the maximum sentence to 20 years of imprisonment and three years
of supervised release, is unconstitutional because of the treatment of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50779    Document: 00515267122     Page: 2   Date Filed: 01/10/2020


                                 No. 19-50779

provision as a sentencing factor rather than as an element of a separate offense
that must be alleged in the indictment and proved to a jury beyond a
reasonable doubt.     He concedes that the issue whether a sentencing
enhancement under § 1326(b) must be alleged in the indictment and proved to
a jury is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).
He contends, however, that subsequent Supreme Court decisions indicate that
the Supreme Court may reconsider this issue, and he seeks to preserve the
argument for possible Supreme Court review.
      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. 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, Medina-Rodriguez’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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