Case: 20-50136     Document: 00515538850         Page: 1    Date Filed: 08/24/2020




            United States Court of Appeals
                 for the Fifth Circuit
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                    August 24, 2020
                                No. 20-50136                         Lyle W. Cayce
                              Summary Calendar                            Clerk



 United States of America,

                                                           Plaintiff—Appellee,

                                     versus

 Jose Fernando Vazquez-Aranda, also known as Jose Vasquez,
 also known as Jose Fernando Aranda-Vazquez,

                                                       Defendant—Appellant.


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 1:19-CR-211-1


 Before Davis, Stewart, and Dennis, Circuit Judges.
 Per Curiam:*
        Jose Fernando Vazquez-Aranda appeals his conviction for illegal
 reentry into the United States. He argues that the enhanced sentencing range
 in 8 U.S.C. § 1326(b) is unconstitutional because a prior conviction is an



        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50136        Document: 00515538850      Page: 2     Date Filed: 08/24/2020




                                  No. 20-50136


 element of the offense that must be alleged in the indictment and found by a
 jury beyond a reasonable doubt. He concedes that the issue is foreclosed by
 Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to
 preserve it for further review. The Government has filed an unopposed
 motion for summary affirmance, agreeing that the issue is foreclosed by
 Almendarez-Torres. Alternately, the Government requests an extension of
 time to file its brief.
         In Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held
 that a prior conviction used to enhance a sentence under § 1326(b) is a
 sentencing factor, not an element of the offense, and thus need not be alleged
 in the indictment. Following Almendarez-Torres, the Court held that facts
 used to increase a sentence beyond the statutory maximum must be alleged
 in the indictment and proved to a jury, except for the fact of a prior
 conviction. See Apprendi v. New Jersey, 530 U.S. 466, 476, 490 (2000).
 Apprendi and subsequent Supreme Court cases did not overrule Almendarez-
 Torres, which remains binding precedent. See United States v. Wallace, 759
 F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268,
 276 (5th Cir. 2005).       Accordingly, Vazquez-Aranda’s sole appellate
 argument is foreclosed by Almendarez-Torres.
         Because the Government’s position “is clearly right as a matter of law
 so that there can be no substantial question as to the outcome of the case,”
 Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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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