     Case: 18-50890      Document: 00515023019         Page: 1    Date Filed: 07/05/2019




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

                                    No. 18-50890                            FILED
                                  Summary Calendar                       July 5, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUBEN BENAVIDES-DAVILA

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:17-CR-1504-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Ruben Benavides-Davila appeals his guidelines sentence of 46 months
imprisonment and three years of supervised release following his guilty plea
conviction for illegal reentry. He argues that the enhancement of his sentence
pursuant to 8 U.S.C. § 1326(b)(2), which increased the maximum term of
imprisonment to 20 years of imprisonment, is unconstitutional because of the
treatment of the provision as a sentencing factor rather than as an element 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50890    Document: 00515023019     Page: 2   Date Filed: 07/05/2019


                                 No. 18-50890

a separate offense that must be listed in the indictment and proved to a jury
beyond a reasonable doubt.      He concedes that this issue is foreclosed 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 decisions indicate that the Supreme Court may reconsider its
holding in Almendarez-Torres.
      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. Rojas-Luna, 522 F.3d 502, 505 (5th
Cir. 2008) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466
(2000)). Thus, Benavides-Davila’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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